Siskind Susser is excited to announce that Lynn Susser was recently elected to ABIL, the Alliance of Business Immigration Lawyers. ABIL is comprised of over 20 lawyers from top tier immigration practices with years of expertise and a comprehensive understanding of immigration law. For more information on ABIL, including a map of ABIL attorneys worldwide, visit their website.
The following articles are excerpts from ABIL’s monthly Immigration Insider, available here on their website.
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New Developments at Southern Border: Temporary Restraining Order Bars Trump Administration From Changing Asylum Law; Trump Spars With Chief Justice; No Agreement With Mexico Yet
U.S. District Judge Jon Tigar, of San Francisco, California, has issued a temporary restraining order blocking President Trump’s presidential proclamation and a new rule preventing certain types of asylum claims along the southern border of the United States. The order will remain in effect until a court hearing on December 19, 2018.
President Trump had issued the presidential proclamation targeting potential mass migration through the southern border of the United States with Mexico in response to reports of a “caravan” of a large number of people primarily from Central America with a stated goal of entering the United States. Several thousand members of the caravan are waiting in Tijuana, Mexico, and more are expected. On November 9, 2018, the Departments of Justice and Homeland Security published a related interim final rule limiting asylum claims, and the Executive Office for Immigration Review and U.S. Citizenship and Immigration Services released guidance. The American Civil Liberties Union, the Southern Poverty Law Center, the Center for Constitutional Rights, and other groups immediately sued, claiming that the proclamation and rule violated asylum applicants’ rights.
The court agreed: “The rule barring asylum for immigrants who enter the country outside a port of entry irreconcilably conflicts with the [Immigration and Nationality Act] and the expressed intent of Congress. Whatever the scope of the President’s authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden.” The court also said that the government offered nothing in support of the new rule that outweighed the need to avoid harm to potential asylum seekers, including increased risk of violence and other harms at the border. Among other things, the court also noted that “the application of the Rule will result in the denial of meritorious claims for asylum that would otherwise have been granted. That means that persons who are being persecuted on the basis of their religion, race, or other qualifying characteristic, to whom the United States would otherwise have offered refuge, will be forced to return to the site of their persecution.”
After the ruling, President Trump said, “This was an Obama judge, and I’ll tell you what, it’s not going to happen like this anymore. Everybody that wants to sue the U.S.—almost—they file their case in the Ninth Circuit, and it means an automatic loss. No matter what you do, no matter how good your case is. And the Ninth Circuit is really something we have to take a look at, because it’s not fair.” In an unusual move, John Roberts, Chief Justice of the U.S. Supreme Court, admonished President Trump for referring to Judge Tigar as an “Obama judge.” “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.”
On November 24, 2018, President Trump tweeted, “Migrants at the Southern Border will not be allowed into the United States until their claims are individually approved in court. We only will allow those who come into our Country legally. Other than that our very strong policy is Catch and Detain. No ‘Releasing’ into the U.S.”
Initial reports following the court’s order said that Mexican officials had agreed to hold migrants in Mexico while their asylum claims were processed in the United States. But the incoming foreign minister, Marcelo Ebrard, reportedly said the United States had not yet sent a “specific proposal” and that such an agreement had not been reached. The new president of Mexico, Andres Manuel Lopez Obrador, took office on December 1, 2018. Reportedly, he hopes to negotiate an agreement with the United States to contain Central American migration in exchange for U.S. aid to the region.
Meanwhile, many migrants moved to a new border shelter in the Tijuana, Mexico, area near the U.S. border, where thousands have congregated, while others decided to return home. Some said they would look for work in Mexico. A group of several hundred reportedly attempted to rush the border but were turned back by U.S. border agents.
The temporary restraining order.
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DHS, DOL Publish Joint Proposed Rule to Require Electronic Advertising Instead of Print for H-2B Recruitment
The Departments of Homeland Security and Labor (Departments) have published a joint notice of proposed rulemaking (NPRM) that would “modernize” the recruitment requirements for employers seeking H-2B nonimmigrant workers to fill temporary nonagricultural jobs “to make it easier for U.S. workers to find and fill these open jobs.”
The proposed rule would require electronic advertisements to be posted on the Internet for at least 14 days, replacing the print newspaper advertisements that regulations currently require. The Departments said they believe “this is a more effective and efficient way to disseminate information about job openings to U.S. workers.” The Departments believe that electronic advertisements, posted on websites that U.S. workers in the area of the job opportunity would use, would best ensure that U.S. workers learn of job opportunities. The joint rule proposes phasing out the current requirements with a limited transition period. During the transition, employers would be able to choose between print and electronic advertisements. According to the Departments, this provision should provide flexibility for employers who may have already purchased print advertising or have advertising contracts in place.
The proposed rule would not mandate that an employer post its advertisement on a specific website but rather would allow an employer to place an advertisement on any of a variety of websites that are widely viewed and appropriate for use by workers who are likely to apply for the job opportunity in the area of intended employment, including websites that specialize in advertising job opportunities for the specific industry or occupation, and websites that specifically serve the local area, such as localized online job listing services and digital classified sections of local newspapers. The proposed rule also contemplates the use of websites that are not specifically directed at workers in the area of intended employment or the particular occupation, so long as the website is appropriate for the occupation and adequately serves the area of intended employment.
To assure that the job opportunity described in the advertisement is readily available to U.S. workers, the proposed rule would require that the advertisement be publicly accessible at no cost to an applicant. To meet this requirement, the website on which the advertisement is placed cannot require U.S. workers to pay fees to establish personal accounts or make payments of any kind to view the advertisement. The website must also be functionally compatible with the latest commercial Web browser platforms and easily viewable on mobile smartphones and similar portable devices.
The proposed rule would require an employer to print and retain screen shots of the Web pages on which its advertisement appears and screen shots of the Web pages establishing the path used to access the advertisement. Although the proposed rule does not require employers to submit this documentation with their recruitment reports, an employer must nevertheless retain this documentation and provide it to the Department of Labor in the event of an audit or other review, the NPRM states.
A transition provision would permit an employer submitting an Application for Temporary Employment Certification with a date of need before October 1, 2019, to place either (a) an electronic advertisement in accordance with the requirements in the proposed rule, or (b) two newspaper advertisements in accordance with existing requirements. Because the Departments are proposing to have this rule take effect immediately upon publication of the final rule, the Departments are including this transition period “to provide flexibility to employers that seek additional time to understand and comply with the proposed regulatory revisions, while simultaneously permitting employers that wish to place electronic advertisements immediately upon the effective date of the final rule the ability to do so,” the NPRM states. The transition provision is intended “to better ensure, among other things, that employers who have purchased newspaper advertising space in advance do not lose the benefit of such purchase.”
The Departments invite comments on whether they should establish qualifying criteria (e.g., the minimum number of unique visitors per month), or define the types of websites on which an employer may place an electronic advertisement under the proposed rule, and whether the rule should exclude websites maintained by the employer and/or the employer-client of a job contractor seeking to employ H-2B workers. The Departments also solicit comments on whether, instead of eliminating print newspaper advertisements, they should offer electronic advertisements as an alternative means of satisfying the existing print advertising requirement. The Departments are not proposing this option, but they invite comments on whether there are employers that lack the technology or Internet access necessary to place the electronic advertisements described in the proposed rule, and if so, how the Departments should determine whether such employers have met their obligation to recruit U.S. workers. For example, the Departments noted that they could leave current recruitment requirements in place as an option for such employers. The Departments solicit comments on whether there are alternative methods that would more broadly and effectively disseminate information about available job opportunities to U.S. workers.
Comments may be submitted, using one of the methods provided in the NPRM, by December 10, 2018. The NPRM is here.
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DHS Extends TPS for Sudan, Nicaragua, Haiti, El Salvador Under Preliminary Injunction
The Department of Homeland Security (DHS) has announced actions to comply with the preliminary injunction order of the U.S. District Court for the Northern District of California in Ramos v. Nielsen. Beneficiaries under the temporary protected status (TPS) designations for Sudan, Nicaragua, Haiti, and El Salvador will retain their TPS while the preliminary injunction remains in effect, provided that an individual’s TPS status is not withdrawn under INA § 244(c)(3) or 8 CFR § 244.14 because of ineligibility.
DHS is automatically extending through April 2, 2019, the validity of TPS-related employment authorization documents (EADs), Forms I-797, Notice of Action (Approval Notice), and Forms
I-94 (Arrival/Departure Record) (collectively “TPS-related documentation”), as specified in the notice, for beneficiaries under the TPS designations for Sudan and Nicaragua, provided that the affected TPS beneficiaries remain otherwise individually eligible for TPS. The notice also explains DHS’s plans to issue a subsequent notice that will describe the steps DHS will take after April 2, 2019, to continue its compliance with the preliminary injunction.
The TPS designations of Sudan, Nicaragua, Haiti, and El Salvador will remain in effect as long as the preliminary injunction remains in effect. TPS for those countries will not be terminated unless and until any superseding, final, non-appealable judicial order permits the implementation of such terminations, DHS said.
Further, DHS is automatically extending the validity of TPS-related documentation for those beneficiaries under the TPS designations for Sudan and Nicaragua, as specified in the notice. Those documents will remain in effect for six months from the issuance of the preliminary injunction (which occurred on October 3, 2018), through April 2, 2019, provided the individual’s TPS is not withdrawn under INA § 244(c)(3) or 8 CFR § 244.14 because of ineligibility, DHS said. In the event the preliminary injunction is reversed and that reversal becomes final, DHS will allow for an “orderly transition period.”
Information on the status of the preliminary injunction
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This newsletter was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers (www.abil.com), of which Lynn Susser is an active member.
Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.