Virginia Federal Judge Upholds Trump Immigration Executive Order Signalling Possible Split in Circuits

On March 24 President Trump’s revised immigration ban which took effect March 16, 2017 (March Order) was found to be enforceable for the first time. U.S. District Judge Anthony J. Trenga in Alexandria, Va., denied an emergency request for a temporary restraining order (“TRO”) to suspend enforcement of the March Order. Judge Trenga diverged from his counterparts in Hawaii and Maryland who granted temporary restraints against the March Order. On March 15 U.S. District Court Judge Derrick Watson in Honolulu issued a TRO pending further order of the Court and blocked core provisions of the March Order on the basis that the Order is an unconstitutional establishment of religion and inflicts immediate harm on Hawaii’s economy, education and tourism; this order is on appeal to the Ninth Circuit. Specifically, Judge Watson blocked the 90-day ban on entry of foreign nationals from the six Muslim-majority countries (Iran, Syria, Libya, Sudan, Yemen and Somalia) and the 120-day ban on U.S. entry by all refugees. The next day U.S. District Court Judge Theodore D. Chuang in Greenbelt, Maryland issued a nationwide preliminary injunction blocking the part of the March Order that suspended the issuance of visas to citizens of the six banned countries; Judge Chuang’s decision is on appeal to the Fourth Circuit which will hear arguments on May 8. Judge Chuang and Judge Watson both found that the March Order was intended to discriminate against Muslims. On March 29, Judge Watson converted the TRO into a nationwide preliminary injunction blocking provisions of the March Order indefinitely.

The Virginia lawsuit was brought by Linda Sarsour, national co-chair of the Women’s March on Washington and a Muslim activist. Ms. Sarsour relied on Trump’s public remarks and argued that the “long and unbroken stream of anti-Muslim statements made by both candidate Trump and President Trump, as well as his close advisors, which, taken together, makes clear that [Trump’s January and March Orders] are nothing more than subterfuges for religious discrimination against Muslims.” In deciding not to enjoin the March Order, Judge Trenga reasoned that the March Order was “explicitly revised in response to judicial decisions that identified problematic aspects of EO-1 [Trump’s January Order]…” and cited that part of the March Order that “expressly excludes from the suspensions categories of aliens that have prompted judicial concerns and which clarifies or refines the approach to certain other issues or categories of affected aliens.” Judge Trenga found no violation of the Establishment Clause on the grounds that the March Order “clearly has a stated secular purpose: the ‘protect[ion of United States] citizens from terrorist attacks, including those committed by foreign nationals.’” Judge Trenga also concluded that the substantive revisions reflected in the March Order precluded findings that the predominant purpose of the March Order is religious discrimination against Muslims and that the March Order is a pretext for this purpose. Judge Trenga wrote that to proceed otherwise required his “extending [the] Establishment Clause jurisprudence to national security judgments in an unprecedented way.”

Judge Trenga’s March 24 decision is not immediately appealable; Sansour’s court challenge will proceed and the Administration must answer the complaint. If Judge Trenga dismisses the complaint, an appeal to the Fourth Circuit Court of Appeals is expected and may then be consolidated with the pending appeal of Judge Chuang’s preliminary injunction. Given the increased likelihood of a split in the Circuits, the March Order may ultimately be reviewed by a fully constituted Supreme Court. Meanwhile, Judge Watson’s national injunction remains in effect and the attorneys general for California, Maryland, Massachusetts, New York and Oregon have joined Washington in filing another complaint challenging both the January and the March Orders.

If you would like to discuss how the March Executive Order or these court decisions affect your employees and your business, please contact Patrick W. McGovern, Esq., Partner in the Firm’s Immigration Law Practice at 973-535-7129 or at pmcgovern@nullgenovaburns.com.

9th Circuit Refuses to Stay Nationwide Injunction Against Enforcement of Trump Immigration Order While Government Appeals

On February 9, 2017, the Court of Appeals for the Ninth Circuit affirmed the U.S. District Court’s Temporary Restraining Order prohibiting nationwide enforcement of key portions of the immigration Executive Order issued on January 27. A unanimous three-judge panel, consisting of two Democratic appointees and one Republican appointee, in a per curiam opinion, ruled that “the Government has not shown a likelihood of success on the merits of its appeal, nor has it shown that failure to enter a stay would cause irreparable injury, and we therefore deny its emergency motion for a stay.” As a result, the TRO stands and aliens from the seven listed countries (Iraq, Iran, Syria, Somalia, Sudan, Libya and Yemen), including those with immigrant and non-immigrant visas, may continue normal processes for entry into the U.S. and refugees from the seven countries, including Syria, may resume their proceedings to relocate to the U.S. State of Washington v. Trump, (February 9, 2017).

Washington State and Minnesota argued that the Executive Order violated the Establishment and Equal Protection Clauses because it disfavored Muslims and that the TRO merely returned the nation temporarily to the status quo in effect for many years. The Government submitted no evidence to rebut the States’ arguments. The Government, the judges observed, was hard pressed to point to a single recent example of an entrant from one of the seven listed countries who was arrested for terrorist activities. Regarding the argument that the Executive Order violates the Establishment Clause, the court withheld judgment for the time being, pending a decision on the merits, explaining, “The States’ claims raise serious allegations and present significant constitutional questions.”

The Ninth Circuit decision to maintain the nationwide TRO of the Trump immigration Order is immediately appealable to the Supreme Court. The President’s immediate tweet — “See You In Court, The Security Of Our Nation Is At Stake!” – anticipates that the Supreme Court will ultimately review the constitutionality of the Executive Order.

If you have any questions or would like to discuss how the Executive Order affects your employees and your business, please contact  Patrick W. McGovern, Esq., Partner in the Firm’s Immigration Law Practice at 973-535-7129 or at pmcgovern@nullgenovaburns.com.

Senate Approves Bill Overhauling Immigration Law

Last week the Senate passed its closely watched immigration reform bill, known as the Border Security, Economic Opportunity and Immigration Modernization Act of 2013, by a vote of 68-32.  The bill now will be considered by the Republican-controlled House, where it will need 218 votes to pass.  House opponents of the bill have criticized the border-security measures as insufficient and have also voiced concerns about the increased competition for American jobs. House Speaker John Boehner has already announced that he will not introduce any immigration bill that does not enjoy the support of a majority of House Republicans. If the House declines to pass the Senate’s version of the bill, it may consider its own bill. Alternatively, the House may decide to focus on piecemeal legislation.

The most controversial part of the Senate’s bill concerns the so-called “pathway to citizenship” that allows persons living illegally in the U.S. who arrived before 2012 to apply for provisional status, and eventually a green card and citizenship after residing in the U.S. for 13 years, meeting continuous presence and work requirements, learning English and paying various fees. Before the pathway to citizenship provisions can take effect, a border security plan must be in place. In particular, the Department of Homeland Security must increase the number of Border Patrol agents to at least 38,405, approximately double the current number; add approximately 350 miles of new fencing; install a system of surveillance towers, camera systems, drones, helicopters, and radiation detectors; and establish a biometric system to track people leaving the country at the nation’s 30 largest airports. These new security measures would cost approximately $40 billion.  If these security goals are not reached within five years, the federal government would create a Southern Border Security Commission to determine how to reach these targets.

The Senate bill also introduces the following changes for employers:

  • Requires mandatory e-verify for all employers with a photo-ID matching system.
  • Increases civil and criminal penalties for employers that knowingly hire, recruit, refer or continue to employ unauthorized immigrants.
  • Increases the cap on H-1B visas for high-skilled workers from 65,000 to 110,000 per year. The H-1B visa cap could then fluctuate up to 180,000 per year depending on demand. Business executives, athletes, professors, and graduates of U.S. universities with STEM (science, technology, engineering, or math) degrees who have job offers will be excluded from the cap requirement, making more H-1B visas available.
  • Creates a new W visa with a cap of 200,000 visas per year for low-skilled workers in industries such as construction, hospitality and long-term care.
  • Allows agriculture workers who work in the industry for at least two years to qualify for green cards if they stay in the industry for another five years.
  • Creates a nonimmigrant investor visa for entrepreneurs whose businesses attract at least $100,000 in investment, generate $250,000 in annual revenue and create at least 3 jobs in the 2 year period prior to filing the application.
  • Creates an EB-6 immigrant investor visa for entrepreneurs with significant ownership in a U.S. business that has created at least 5 jobs and either received $500,000 in venture capital or investment, or generated $750,000 in annual revenues in the past 2 years.

Genova Burns will continue to monitor the progress of the immigration reform bill as it proceeds through the House and conference committee and will provide updates regarding proposed changes to the immigration law and the implications of these changes for your business. For more information, please contact Patrick W. McGovern, Esq., pmcgovern@nullgenovaburns.com, or Rebecca Fink, Esq., rfink@nullgenovaburns.com, of the Labor Law Practice Group.

Effective Immediately: Employers Must Use Revised I-9 Employment Verification Form

As we previously reported, the U.S. Citizenship and Immigration Services (USCIS) recently approved a revised I-9 Employment Eligibility Verification Form. Effective May 7, 2013, all U.S. employers must complete and maintain the revised form in their records to verify the identity and authorization of each new employee to work in the U.S. Once a new hire and the employer have completed the I-9, the employer must retain a copy of the I-9 form for three years from the date of hire, or one year from the date of termination, whichever is longer. (For example, an employer that terminates an employee after five years of employment must maintain that employee’s I-9 form for one year from the date of termination.) Employers that fail to complete the I-9 form or do not properly retain the I-9 form are subject to monetary penalties up to $1,100 per I-9, and criminal penalties may be imposed in certain cases.

For more information on I-9 compliance, the e-verify program or other immigration law compliance issues, please contact Patrick W. McGovern at pmcgovern@nullgenovaburns.com or Rebecca Fink at rfink@nullgenovaburns.com in our Immigration Law Practice Group.

USCIS Issues Revised I-9 Employment Verification Form

Earlier this month the U.S. Citizenship and Immigration Services (USCIS) released a revised I-9 Employment Eligibility Verification Form. Since May 1986 all U.S. employers have been required to complete and maintain in their records an I-9 form to verify the identity and authorization of each new employee to work in the U.S. Once a new hire has completed the I-9, the employer must retain a copy of the I-9 form for three years from the date of hire, or one year from the date of termination, whichever is longer. (For example, an employer who terminates an employee after five years of employment must maintain that employee’s I-9 form for one year from the date of termination.) Employers that fail to complete the I-9 form or do not properly retain the I-9 form are subject to monetary penalties up to $1,100 per I-9, and criminal penalties may be imposed in certain cases.

The new I-9 form introduces the following changes:

  • Requires employees who are aliens authorized to work under an I-94 card to state the foreign national passport number and country of issuance;
  • Provides clarification under List C of acceptable documents that social security cards with restrictions, such as “Not Valid For Employment,” “Valid for Work Only with INS Authorization,” or “Valid for Work Only with DHS Authorization” are not acceptable List C documents;
  • The List of Acceptable Documents now references Section 2 of the I-9 employer instructions for more information about acceptable receipts.
  • Clarifies that List B identity documents do not require reverification;
  • Adds a field for the employer representative’s name; and
  • Provides optional fields for the employee’s email address and telephone number.

While the USCIS suggests that employers begin using the new I-9 form immediately, employers may continue to use an approved 2009 version of the form through May 6, 2013. Effective May 7, 2013, all employers must use the new I-9 form for new hires.

For more information on I-9 compliance, the e-verify program or other immigration law compliance issues, please contact Patrick W. McGovern at pmcgovern@nullgenovaburns.com or Rebecca Fink at rfink@nullgenovaburns.com in our Immigration Law Practice Group.