News

Letter from Editor

I would like to thank Chay Sengkhounmany and Terry Olsen for writing excellent articles for this issue. I’m always looking for writers and articles on a variety of topics, including family-based immigration issues, employer-based immigration issues, crimimigration, and immigration court/custody issues. Please feel free to contact me at bbuchanan@sblimmigration.com or 615-345-0266 concerning writing an article.

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The “Almost One Year” Anniversary of the “Buy American and Hire American” Executive Order

On April 18, 2017, President Trump signed the Executive Order (EO) “Buy American and Hire American," which has two distinct components – buying American-made goods and enforcing immigration laws in order to create higher wages for workers inside the United States. The EO calls for a shift away from manufacturing goods outside of the United States to conducting production inside the United States.  
 
The two sides of Buy American and Hire American - products almost entirely created in the United States, and stricter immigration enforcement - work together to create the desired result of the Executive Order, which is protecting “American Workers." First, by mandating production to be conducted mostly inside the United States, Americans will in theory purchase exclusively American made products. Second, by rigorously enforcing tougher immigration policies towards foreign nationals, American owners of businesses will in theory hire more “Americans."
 
Hire American
 
The substantive portions of the EO related to Hire American are as follows: Secretaries of State, Labor, Department of Homeland Security (DHS) and the Attorney General, “shall, as soon as practicable, and consistent with applicable law, propose new rules and issue new guidance, to supersede or revise previous rules and guidance if appropriate, to protect interests of U.S. workers in administration of our immigration system, including through prevention of fraud or abuse.” Furthermore, it states: “In order to promote the proper functioning of the H-1B visa program, the Secretary of State, the Attorney General, the Secretary of Labor and the Secretary of Homeland Security shall, as soon as practicable, suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.”
 
When Buy American and Hire American was first announced, many immigration lawyers, and international business/trade lawyers were shocked about the intent and language of the EO but wondered how much of an effect the EO would have on immigration laws due to its vagueness. However, time has shown it has had a major effect. The following are some of the ways: 1) USCIS’s “Policy Memorandum: Rescission of Guidance Regarding Deference to Prior Determinations of Eligibility in the Adjudication of Petitions for Extension of Nonimmigrant Status” – meaning the USCIS can re-adjudicate H-1B extension petitions; 2) additions to the Foreign Affairs Manual (FAM), used by the Department of State consular officers, to keep the “spirit” of the EO in mind – remembering to protect American workers regarding wages and “prevention of fraud or abuse” when adjudicating H-1B, L, O-1, E-1, E-2 and P visas; 3) postponement and probable withdrawal of the International Entrepreneur Rule, which was expected to go into effect on July 17, 2017; 4) the new requirement for in-person interviews for all employment-based immigration cases, effective October 1, 2017; and 5) the proliferation of RFEs on H-1B applications.
 
Buy American
 
On the commerce/manufacturing side, within the first 150 days of the EO, federal agencies were required to develop federal programs, and rules to ensure that federal financial assistance awards, and federal procurements create a business environment in the United States for materials to be produced in the United States, and for products to be made entirely in the United States. Additionally, within the first 150 days of EO, all free trade agreements, and the World Trade Organization Agreement on Government Procurement were reviewed and analyzed with the intent of fulfilling the objectives of Buy American and Hire American. Within 220 days of EO’s issuance, the Secretary of Commerce along with the Secretary of State, the Director of the of Management and Budget, and the United States Trade Representative were required to submit a Report to President Trump regarding how to strengthen the implementation, and effect of Buy American and Hire American—specifically including domestic procurement preference policies and programs. Also, the required agencies must submit subsequent implementation reports on November 15, 2018, November 15, 2019, and November 15, 2020.
 
Conclusion
 
As time marches on, you will see the EO leaving the infancy period and transitioning to the toddler stage in a year or so.  And by 2020 and beyond, Buy American and Hire American will be a growing child with the ability to speak and argue for itself. And as a child often does, Buy American and Hire American will not only be learning only from others and its environment, but it will then be teaching others in turn and will be the focus of its world.
 
Even though Buy American and Hire American is less than a year old, it is very apparent that it is not going away anytime soon, and most likely will be here for a very long time. For example, as the Deferred Action for Childhood Arrivals Executive Order has shown to the American public that even if an Executive Order may later be viewed as unconstitutional and is fought in the court system, its effect(s), and its very life does not go away from the American culture, and people right away—if at all. Subsequently, even though the existence of this EO may not make sense right now, or if at all—with the passing of time, the changing of language, and with memory being less pungent— Buy American and Hire American is a fact, and item of essential detail which must be seen in its entirety of effect, and result.
 
___________________
The author is Terry Olsen, the founder of his own immigration law practice, Olsen Law Firm, in Chattanooga, Tennessee.  His practice areas include both employment and family immigration law.  Mr. Olsen is the Chair of the TBA’s International Law Section. He may be contacted at tolsen@tlolaw.com or (423) 648-9390.  
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Worksite Enforcement is on the Rise

As I have been discussing in my blog, Immigration and Customs Enforcement (ICE) is taking a much more aggressive approach to worksite enforcement, also called employer immigration compliance. I will detail several actions by ICE in 2018 that demonstrate this aggressive approach.
 
Memphis Enforcement Action
The first example hits close to home as 20 undocumented workers were indicted for using fake identification to obtain their jobs with Provide Staffing Services, a staffing agency, at Memphis International Airport. According to Michael Dunavant, the U.S. Attorney for the Western District of Tennessee, no one with the company that hired the workers has been indicted but the investigation is ongoing.  
 
Robert Hammer, assistant special agent in charge with Homeland Security Investigations (HSI), stated the federal government is aggressively pursuing this case because the undocumented workers had access to a sensitive air cargo area at Memphis International Airport that required special clearance. “It is imperative for the safety and security of our airports, seaports and railyards that all individuals requiring this type of special vetting present valid and genuine identification documents in the hiring process,” he said. Hammer also stated worksite immigration investigations will likely focus on "critical infrastructure," such as airports, defense contractors, food distribution and other businesses that have an impact on the general safety and welfare of the community. 
 
The U.S. Attorney also stated ICE plans to increase its focus on this type of criminal investigation in Tennessee throughout 2018: "Our enforcement strategy is going to be dual-pronged, focusing on both employers and the employees.” 
 
7-Eleven “Silent Raids”
In a true show of force, ICE delivered Notice of Inspections (NOIs) (sometimes referred to as “silent raids”) at almost 100 7-Eleven stores nationwide in January 2018 demanding to see the I-9 forms of all employees. Furthermore, ICE detained 21 employees. Thomas Homan, acting director of ICE, issued a statement – “Today’s actions send a strong message to U.S. businesses that hire and employ an illegal workforce: ICE will enforce the law, and if you are found to be breaking the law, you will be held accountable.”
 
ICE referred to its 7-Eleven actions as a “follow-up” of a 2013 investigation that resulted in the arrests and convictions of five 7-Eleven franchise owners in New York and Virginia for harboring undocumented workers and wire fraud. Because of these convictions, it spawned the largest forfeiture in ICE history – forfeiture of franchise rights to 14 stores, forfeiture of five houses, valued at $1.3 million, and restitution of over $2.6 million for back wages stolen from employees. After the convictions of the store owners in New York and Virginia in 2013 and 2014, 7-Eleven’s corporate office stated it would “take aggressive actions to audit the employment status of all of its franchisees’ employees.” However, after the most recent actions, 7-Eleven management issued a statement appearing to try and wash their hands of any responsibility or liability for the franchisees’ actions.
 
ICE’s New Three-Prong Approach to Worksite Enforcement
Immediately after the 7-Eleven enforcement actions, ICE announced a three-prong approach to conduct worksite enforcement. This strategy involves: immigration compliance, through Form I-9 inspections, civil fines and referrals for debarment; enforcement, through the arrest of employers, knowingly employing undocumented workers, and the arrest of unauthorized workers for violation of laws associated with working without authorization; and outreach, through the IMAGE program, to instill a culture of compliance and accountability.
 
“Homeland Security Investigations (HSI) prioritizes violators who abuse and exploit their workers, aid in the smuggling or trafficking of their alien workforce into the United States, create false identity documents or facilitate document fraud, or create an entire business model using an unauthorized workforce,” said HSI Acting Executive Associate Director Derek Benner. “Further priority is given to looking closely at those companies or industries that are deemed national security or critical infrastructure interests.” ICE also stated an effective worksite enforcement strategy must address both employers who knowingly hire illegal workers, as well as the workers themselves.
 
California “Silent Raids”
In February, ICE announced it conducted I-9 inspections of 77 employers in the San Francisco and Sacramento areas over a three-day period. A few days later, ICE issued NOIs for almost 10 employers in the Fresno, California. ICE refused to identify any of the businesses visited by its agents. However, just the fact that ICE served subpoenas on so many employers demanding their I-9 forms and then announced it to the media, demonstrates ICE is trying to put the fear of government action in the minds of every employer.
 
Cost of Non-Compliance of Immigration Laws
So, what do these enforcement actions potentially cost employers? After the businesses comply with the subpoena/NOI, ICE auditors will carefully review the I-9 forms to determine whether undocumented workers are employed at the business and whether the I-9 forms have substantive errors, which could cost $224 to $2,236 per I-9 form. As an example, if an employer employs 100 employees, of which 50 have one or more I-9 substantive errors, then that employer’s liability is at least $92,750. For larger business, the penalties would be greater if the 50 percent error rate continued. 
 
If undocumented workers are employed, ICE may return to the employer and detain the undocumented workers. Alternatively, ICE may issue a Notice of Suspect Documents to the employer stating which employees do not have valid work authorization. If after the employer gives its employees an opportunity to provide valid documentation (“newer and better documentation”), the employees fail to provide such, the employer must discharge those employees or face fines of up to $4473 per employee.

— Bruce E. Buchanan is the founding partner of Sebelist Buchanan Law PLLC located in Nashville and Atlanta. He is also “Of Counsel” to Siskind Susser PC on employer immigration compliance matters. Buchanan is a graduate of Vanderbilt University School of Law. He has co-authored a book, I-9 and E-Verify Handbook, 2d ed. (2017). Reach him at bbuchanan@sblimmigration.com or (615) 345-0266.
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Termination of TPS – Are There any Other Options Available

The Trump Administration has revoked the Temporary Protected Status (TPS) designations for four countries and is set to review the designations for several more countries in 2018. The TPS revocations will affect over 300,000 people who will lose TPS by the end of 2019. Many of these TPS holders have lived in the United States for decades and have developed significant family and economic ties to this country. In the ensuing months prior to the termination of their TPS status, TPS recipients must explore other immigration options. Termination of TPS means they will be undocumented and not be authorized to work or stay in the United States. This article will cover two specific options as they relate to TPS. Keep in mind that options other than the two discussed may be available and should also be explored.

A.   Adjustment of Status

To be eligible to adjust status under INA § 245(a) to legal permanent residence, an individual must have been “inspected and admitted or paroled” into the United States. He or she must be admissible, and an immigrant visa must be immediately available. Generally, those who entered without inspection cannot adjust status under INA § 245(a) because they have not been inspected and admitted or paroled. However, the Sixth Circuit[1] and Ninth Circuit[2] Courts of Appeal have held an individual holding TPS status who initially entered without inspection will be considered to have been inspected and admitted for the purposes of adjusting status under INA § 245(a).

In making their decisions, the circuit courts analyzed INA § 244(f)(4), which states:

(f) Benefits and Status During Period of Temporary Protected Status. — During a period in which an alien is granted temporary protected status under this section—

(4) for purposes of adjustment of status under section 245 and change of status under section 248, the alien shall be considered as being in, and maintaining, lawful status as a nonimmigrant.

The courts held the plain meaning of the phrase “for purposes of adjustment of status under section 245” applies to all of section 245, and so a person granted TPS “shall be considered as being in, and maintaining, lawful status as a nonimmigrant” for purposes of adjustment of status under section 245(a).[3]  Therefore, the courts concluded a grant of TPS must constitute an “admission” for adjusting status.Individuals who meet the following requirements are eligible to adjust their statuses because of the rulings in Ramirez and Flores:  1) those living in a state within the jurisdiction of the Sixth and Ninth Circuits; 2) those currently in TPS status; 3) those who are immediate relatives of U.S. citizens, i.e. children and spouses of U.S. citizens and the parents of U.S. citizens who are 21 or older; and 4) those who initially entered without inspection and would otherwise be eligible for adjustment of status to lawful permanent resident status.

The issue of whether a person whose TPS was terminated or expired continues to satisfy the “inspected and admitted” requirement remains unresolved. The Ramirez and Flores cases involved plaintiffs who were currently in TPS status. The language of INA § 244(f)(4), which the courts based their decisions on, refer specifically to the period in which a person is granted TPS status. An American Immigration Council (AIC) Practice Advisory, “Court Decisions Ensure TPS Holders in Sixth and Ninth Circuits May Become Permanent Residents”, dated September 16, 2017, states USCIS will likely deny an adjustment of status application by relying upon the statutory language -  “During the period in which an alien is granted temporary protected status under this section - … (4) for purposes of adjustment of status under section 245 … the alien shall be considered as being in, and maintaining, lawful status as a nonimmigrant.” INA § 244(f)(4).  Additionally, the AIC Practice Advisory states USCIS may cite Medina v. Beers, 65 F.Supp. 3d 419, 431 (E.D. Pa. 2014), which held TPS recipient’s “failure to maintain [TPS] status—by failing to re-register for TPS or by otherwise making him or herself ineligible for TPS—would be grounds for denying an adjustment to lawful permanent resident status.” Additionally, the argument that a TPS holder would “revert” to an unadmitted status is bolstered by the Ninth Circuit’s decision in United States v. Hernandez-Arias, 757 F.3d 874 (9th Cir. 2014), which held that if temporary resident status under IRCA was terminated, an applicant for adjustment of status was no longer considered admitted.

In the jurisdictions outside of the Sixth and Ninth Circuits, USCIS does not consider a grant of TPS to be an admission for adjustment purposes. Also, the Eleven Circuit Court of Appeal has held that TPS is not an admission.  For those TPS holders who entered without inspection living in jurisdictions outside of the Sixth and Ninth Circuits, adjustment of status based on being inspected and admitted is not an option. 

B.    Advance Parole

An alternative option for those outside of the Sixth and Ninth Circuit is travelling on advance parole. Advance parole allows the person to have a lawful means of returning to the United States after a brief trip abroad. TPS holders are specifically allowed by statute to travel while in TPS status.[4]  The regulations do not require any specific reasons for travel[5], and advance parole for TPS holders have been granted for personal and business reasons. A person who travels and returns on an advance parole will not trigger the three-or-ten-year unlawful presence bars because he or she has not made a legal departure.[6]  Upon return to the United States with advance parole, a TPS holder will be paroled in and thus, eligible for adjustment of status (as long as they meet the other requirements) without the need for an unlawful presence waiver. Bear in mind that travelling on advance parole may be risky and being granted advance parole does not guarantee admission back into the United States.

 

Countries currently designated for TPS

 

Terminates

Extended

Re-registration period

TPS designation Date

Number of people affected

El Salvador

9/9/2019[7]

 

01/18/2018 – 03/19/2018

03/09/2001[8]

263,280

Haiti

07/22/2019[9]

 

01/18/2018 – 03/19/2018

01/21/2010[10]

58,550

Honduras

 

07/05/2018[11]

12/15/2017-02/13/2018

01/05/1999[12]

86,000

Nepal

 

07/05/2018[13]

10/26/2016-12/27/2016

06/24/2015[14]

8,950

Nicaragua

01/05/2019[15]

 

12/15/2017-02/13/2018

01/05/1999[16]

5,305

Somalia

 

09/17/2018[17]

01/17/2017-03/20/2017

09/16/1991[18]

499

South Sudan

 

05/02/2019[19]

09/21/2017-11/20/2017

11/03/2011[20]

70

Sudan

11/02/2018[21]

 

10/11/2017-12/11/2017

11/04/1997[22]

1048

Syria

 

09/30/2019[23]

 

03/29/2012[24]

6,916

Yemen

 

09/03/2018[25]

01/04/2017-03/06/2017

09/03/2015[26]

1116

 

Author Chay Sengkhounmany formed her own law firm, Sengkhounmany Law, about four years ago after working for Legal Aid Society of Middle Tennessee and the Cumberlands for 10 years, seeking humanitarian immigration relief, such as VAWA, T visas and U visas. Sengkhounmany holds a law degree from Georgia State University College of Law. She may be reached at chay@senglaw.com or 615-667-0270.


[1] See Flores v. USCIS, 718 F.3d 548 (6th Cir. 2013)

[2] See Ramirez v. Brown, 852 F.3d 954 (9th Cir. 2017),

[3] Ramirez, 852 F.3d at 962; Flores, 718 F.2d at 553.

[4] INA § 244(f)(3).

[5] 8 CFR § 244.15.

[6] Matter of Arrabelly and Yerrabelly, 25 I&N Dec. 771 (BIA 2012).

[7] 83 Fed. Reg. 2654 (Jan. 18, 2018).

[8] 66 Fed. Reg. 14214 (Mar. 9, 2001).

[9] 83 Fed. Reg.  2648 (Jan. 18, 2018).

[10] 75 Fed. Reg. 3476 (Jan. 21, 2010).

[11] 82 Fed. Reg. 59630 (Dec. 15, 2017).

[12] 64 Fed. Reg. 524 (Jan. 5, 1999).

[13] 81 Fed. Reg.  74470 (Oct. 26, 2016).

[14] 80 Fed. Reg. 36346 (Jun. 24, 2015).

[15] 82 Fed. Reg. 59636 (Dec. 15, 2017).

[16] 64 Fed. Reg. 526 (Jan. 5, 1999).

[17] 82 Fed. Reg. 4905 (Jan. 17, 2017).

[18] 56 Fed. Reg. 46804 (Sept. 16, 1991).

[19] 82 Fed. Reg. 44205 (Sept. 21, 2017).

[20] 76 Fed. Reg. 63629 (Oct. 13, 2011).

[21]  82 Fed. Reg. 47228 (Oct. 11, 2017).

[22] 62 Fed. Reg. 59737 (Nov. 4, 1997).

[24] 77 Fed. Reg. 19026 (March 29, 2012), and correction at 77 FED. REG. 20046 (April 3, 2012).

[25] 82 Fed. Reg. 859 (Jan. 4, 2017).

[26] 80 Fed. Reg. 53319 (Sept. 3, 2015).

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Immigration Law Forum Reception

The TBA Immigration Law section will hold a cocktail reception immediately following its forum on April 6. Join friends and colleagues to relax and unwind after the program.
 
This event provides a great opportunity to meet leadership of the organization while networking with attorneys and professionals with a similar focus. Forum attendance is not required to attend the reception. Here’s the key info:
  • When: April 6, 3 p.m., CDT
  • Where: Tennessee Bar Center, 5th Floor Terrace Room, 221 4th Ave N., Nashville, TN 37219
  • To learn more: Contact Wil Hammond with any questions.
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Immigration Law Forum 2018

Join your colleagues for the 2018 Immigration Law Forum on April 6 at the Tennessee Bar Center. This seminar will offer practical tips to both experienced immigration attorneys as well as those practitioners who are just getting started, or attorneys whose representation of foreign national clients in juvenile or criminal matters could touch on immigration-related issues. Learn more or register today!

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House Committee Approves In-State Tuition for Immigrants

The Tennessee House Education Administration and Planning Subcommittee today approved a bill that would grant in-state tuition to undocumented and immigrant students, The Tennessean reports. Last year, the bill failed in the same committee by a 7-6 vote. Gov. Bill Haslam has expressed support for the measure, and even took photos with students who came to the Capitol to rally for the bill’s passage.
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SCOTUS Denies Request to Review Judge’s Ruling on DACA

The U.S. Supreme Court today refused to review an injunction that prevents the Trump administration from phasing out DACA, the ABA Journal reports. The Supreme Court denied the U.S. Justice Department’s request for "certiorari before judgment," a process for direct, immediate review of cases, usually involving issues of national crisis. The preliminary injunction in question was issued by U.S. District Judge William Alsup of San Francisco. According to a brief filed in the case, it has been nearly 30 years since certiorari before judgment was used to decide a case before a federal appeals court issued its decision. The Supreme Court can still decide to hear the case after a decision by the 9th Circuit Court of Appeals. 
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TBA Gears Up for 2018 Mock Trial Tournament

The Tennessee Bar Association will host the upcoming Tennessee High School Mock Trial Tournament on March 23 and 24 in Nashville. The Mock Trial is a two-day, single-elimination bracket-style competition where 16 high schools face-off against each other in the Davidson County Courthouse. Each team is scored on their trial preparation and skills. 

We need TBA volunteers to help be bailiffs and jurors (scorers) for the event. After signing up, we will send you a Volunteer Memo with all the information you need for competition including; parking, hotel, downtown map, courthouse rules, and reimbursement information. Come be a part of the Young Lawyers Divisions’ March Madness! Feel free to contact YLD Director Stephanie Vonnahme with any questions.

To volunteer for this event, click here.

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Don't Forget: Winter CLE Blast Tomorrow!

Need CLE hours fast? We can help! The annual Winter CLE Blast is less than a day away. With this program, you can complete up to 11 hours of Dual CLE credit on your own time. Our registration desk will be open from 7 a.m. to 6:45 p.m. on Feb. 21, providing you the flexibility to create your own schedule and take as many or as few hours as you need. Payment will be determined at checkout depending on the number of hours you attend. 

Highlights

  • Flexible to your schedule
  • Up to 11 Hours of CLE
  • Ethics Credits
  • Compliance CLE
  • Live Credit Hours

When: Feb. 21, registration begins at 7 a.m., CST

Where: Tennessee Bar Center, 221 4th Ave N., Nashville, TN 37219

 

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SCOTUS to Take Up Trump Travel Ban

The U.S. Supreme Court today announced it would take on the case against the latest version of President Donald Trump’s travel ban, which blocks individuals from six majority-Muslim countries from entering the United States, Fox News reports. The court will hear arguments in April and is expected to issue a ruling in June. This version of the ban applies to citizens of Chad, Iran, Libya, Somalia, Syria and Yemen, as well as North Korea and certain people from Venezuela.
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Federal Judge Rules DACA Must Stay, For Now

A federal judge yesterday ruled that the Trump administration must restart the Deferred Action for Childhood Arrivals (DACA) program, The New York Times reports. Judge William Alsup said that the decision to kill it was improper, and that the government must keep the program running nationally as the legal challenge to the president’s decision goes forward. The administration moved to end the program in September.
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DOJ Lawyers Seek Change to Order Lifting Refugee Ban

The U.S. Department of Justice has asked U.S. District Judge James Robart to change his order that partially lifted a Trump administration refugee ban, the Associated Press reports. Robart’s order blocked restrictions on reuniting refugee families and partially lifted a ban on refugees from 11 countries. Robert limited the injunction to refugees who have a bona fide relationship to people in the United States, and also included refugees with formal agreements with resettlement agencies in this order. The federal government is seeking to change the portion related to resettlement agencies.
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Concern Building Over Presence of Immigration Agents at Courthouses

The Commercial Appeal has a spotlight on the growing concern among lawyers who handle immigration cases over enforcement actions taking place in courthouses. Memphis attorney Sheryl Hurst said the presence of immigration agents could intimidate clients and disrupt the function of immigration courts. "We already have a hard time trying to get witnesses who are undocumented up here to court," she said. An ICE spokesperson said that agents have a right to visit immigration court and there’s no reason why they shouldn’t.
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Immigration Crackdown Planned for Job Sites in 2018

The federal government will ramp up job site immigration enforcement actions in Tennessee next year, The Commercial Appeal reports. The investigations will focus on “critical infrastructure,” such as airports, defense contractors or food distributors. The crackdown is based on orders from Thomas D. Homan, acting director of U.S. Immigration and Customs Enforcement.
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SCOTUS: Judge Ruled on DACA Documents Too Soon

The U.S. Supreme Court on Wednesday said that U.S. District Judge William Alsup ruled too soon when we ordered document disclosure in lawsuits challenging the Trump administration’s DACA wind-down, the ABA Journal reports. In a per curiam decision, the court said that Alsup should have ruled first on the government’s claim that the courts have no jurisdiction to rescind the program. The judge should have stayed his order to resolve the government’s arguments.
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Oregon Lawyer Named Legal Innovator for Using Analytics in Detainee Representation

The Financial Times has named Stephen Manning, legal director of the Innovation Law Lab, as the top legal innovator in North America, the ABA Journal reports. Manning was recognized for using data analytics and technology to help lawyers in immigration and refugee cases. The Innovation Law Lab has advocated for the release of over 30,000 women and children from detention centers with a 99 percent success rate. The online platform fosters links between lawyers and provides legal support and resources to detainees and volunteers.
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RAISE Act: Is it Good Immigration Policy for Employers and America?

 
On August 2, 2017, Senators Tom Cotton (R-Ark.) and David Perdue (R-GA) introduced Reforming American Immigration for a Strong Economy (RAISE) Act with the support of President Trump. Senator Perdue has stated this legislation will return to the United States’ “historically normal levels of legal immigration.” Is the RAISE Act a good idea for the United States – from an employer’s perspective and a moral perspective?
 
Key Points of RAISE Act
 
The following are the key points of the proposed RAISE Act:
1. Establish a Skills-Based Points System – It will replace the current employment-based green card visa process with a system that would prioritize applicants by points based on education, English-language ability, high-paying job offers, age, record of extraordinary achievement, and entrepreneurial initiative. Experience does not count for any points. Age is a crucial factor with the younger you are (not including a minor), the more points you get. The total quota of visas remains at 140,000 (this number would include spouses and children) per year for visas in EB-1, EB-2, EB-3 and EB-4 categories. Employment-based numbers are to be divided with a limit of 50% being available in each six-month period.   Applicants who apply will remain in the eligibility pool for 12 months and then will have to reapply.
 
2. Cut Total Immigrant Visas – It will reduce the annual distribution of green cards from 1 million to about 500,000. Although the sponsors state this level of visas returns the number to historical levels, it treats the number of immigrants in 1900 as the same as the number of immigrants in 2017, even though the U.S. population quadrupled during that time. To understand historical levels, one must control for the population of the country at that time.
 
3. Change meaning of Immediate Family - It will retain immigration preferences for spouses and minor children of USCs and permanent residents (LPRs) while eliminating preferences for USCs petitioning for parents, adult children or siblings and LPRs petitioning for adult children. Additionally, the age for an adult “child” for immediate relative sponsorship will be changed from 21 to 18.
 
4. Reduce the number of family-based green cards - Total family-based green card numbers will be reduced from a base 226,000 to about 88,000.  This number will likely use all the 88,000 numbers, meaning only immediate relatives, who are spouses and children under 18 of U.S. citizens, will be able to immigrate.
 
5. Grandfather in potential immigrants awaiting entry under immigration categories eliminated by RAISE Act if their entry into U.S. is scheduled to occur within 1 year of RAISE Act’s enactment. However, if one is “in line” and their number is not called within the one-year grandfathering clause, one permanently loses their place in line and may not ever be able to get back in line.
 
6. Parents of U.S. citizens - They will be eligible for a “W” non-immigrant visa for up to five years with the possibility of extending if the citizen child continues to reside in the US. Parents will not be eligible to be employed or eligible for any public benefits. 
 
7. Eliminate Diversity Visa Lottery - RAISE Act would eliminate the 50,000 visas allocated to this lottery.
 
8. Cap refugee admissions at 50,000 per year - The INA set a limit of 50,000 in the early 1980s for three years, but since then, the INA has permitted the President to set the level, which until 2017 was significantly higher than 50,000.
 
How Does Skills-Based System Work
 
Here’s how the skills-based points system works:
 
a. Applicants earn points based on education, English-language ability, high-paying job offers, age, record of extraordinary achievement, and entrepreneurial initiative;
 
b. Applicants must reach 30-point threshold to be eligible for employment-based visa; and
 
c. Eligible applicants enter pool of potential immigrants from which USCIS twice a year invites highest scorers to file full applications and undergo security vetting.
 
The tie-breaking factors, in descending order are education (the higher the degree, the better), English skills, and age.
 
Employer Issues with RAISE Act
 
Historically, the United States has valued the ability of companies to sponsor employees. So, would this legislation impact that ability of employers? Yes, because the perspective employee that an employer seeks may not have sufficient points to immigrate under the merit-based system. A points-based immigration system would take the decision of who counts as a qualified individual away from employers and give the government more influence. 
 
Furthermore, the RAISE Act fails to increase the number of employment-based green cards at a time when our nation needs to do so to compete to attract the “best and the brightest." The RAISE Act is also harmful to graduates from U.S. universities and would remove lower-skilled immigrants from the U.S. immigration system, even though these immigrants contribute positively to the U.S. economy. 
 
Family-Based Visa Issues
 
The United States has always valued the ability of families to sponsor family members. Often immigrants desire to sponsor their parents or adult children in order to keep the family unit together in the long term. This legislation would deny this ability to keep the family unit together permanently, which I think all would agree is contrary to our values. The Act's very narrow grandfather period is not enough and would unfairly penalize thousands of family-based immigrants who have been patiently waiting for years in a visa backlog. 
 
Conclusion
 
Although everyone agrees our immigration system is broken, the RAISE Act does not appear to be the tool to fix it. Instead, the RAISE Act would cause serious problems for employers seeking to hire foreign nationals through employment-based visas. Additionally, this bill is contrary to American values and those magical words on the Statute of Liberty - "Give me your tired, your poor, your huddled masses yearning to breathe free…”. Luckily, there is very little chance this legislation will ever become law.

Bruce E. Buchanan is a founding partner of Sebelist Buchanan Law PLLC located in Nashville and Atlanta. He is also “Of Counsel” to Siskind Susser, P.C. on employer immigration compliance matters. Bruce is a graduate of Vanderbilt University School of Law. Bruce co-authored a book, I-9 and E-Verify Handbook, 2d edition, which has recently been published. He may be reached at bbuchanan@sblimmigration.com or (615) 345-0266.
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Immaterial False Statement Does Not Equal Loss of Citizenship

 
In Maslenjak v. United States, 582 U.S.___ (2017), the U.S. Supreme Court, in an opinion written by Justice Elena Kagan, and joined by Chief Justice John B. Roberts and Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor, held a naturalized American citizen cannot be stripped of their citizenship in a criminal proceeding based on having made an immaterial false statement during the process of procuring naturalization. Justices Neil Gorsuch and Clarence Thomas concurred in part and concurred in the judgement. Justice Samuel Alito also concurred in the judgement. 
 
Petitioner Divna Maslenjak is an ethnic Serb, who resided in Bosnia during the Yugoslav civil war of the 1990s. In 1998, Maslenjak, her husband and their children applied for refugee status in the United States. During the application process, Maslenjak testified under oath that she and her family would be persecuted by Bosnian Muslims because they were ethnic Serbs, and by Serbs because her husband had evaded service in the Bosnian Serb Army and fled to Serbia. Years later, when Maslenjak filed for naturalization, she swore that she had never given false information to a government official when applying for an immigration benefit and she had never lied to a U.S. official to gain entry into the United States. 
 
Around the time that Maslenjak filed for naturalization, the Government confronted Maslenjak’s husband with records showing that he had not hid in Serbia during the civil war, but had in fact served as an officer in the Bosnian Serb Army, and his brigade participated in the Srebrenica massacre where roughly 8,000 civilians were killed. About a year later, Maslenjak’s husband was convicted of charges of making false statements on immigration applications. During her husband’s court proceedings Maslenjak admitted that she had known all along that her husband had fought in Bosnia during the 1990s and did not hide in Serbia as she had previously stated. 
 
A federal prosecutor (Government) charged her with “knowingly procur[ing], contrary to law, [her] naturalization,” in violation of 18 U.S.C. § 1425(a). The Government argued that Maslenjak violated § 1425(a) because she also violated 18 U.S.C. § 1015(a), which prohibits knowingly making a false statement under oath in a naturalization proceeding. 
 
Thereafter, a trial in federal court took place. The District Court’s jury instructions stated to obtain a conviction under § 1425(a), the Government did not need to prove that Maslenjak’s false statements were material to the decision to approve her citizenship application. The jury convicted Maslenjak. The Sixth Circuit Court of Appeals affirmed the conviction, holding if Maslenjak made false statements, then she violated §§ 1015(a) and 1425(a).   
 
The Supreme Court held that the jury instructions provided by the District Court were in error because the jury needed to find more than just the fact that Maslenjak made a false statement. Accordingly, the Court vacated the judgement of the Sixth Circuit Court of Appeals and remanded the case. 
 
The Government argued that § 1425(a) applies to any violation of the law committed “in the course of procuring naturalization,” even if that violation of the law would not have impacted the decision to approve or deny the naturalization application. Maslenjak, on the other hand, argued that an applicant for naturalization “procures” citizenship “contrary to law” only if the predicate crime “contribut[ed]” to grant of citizenship. 
 
The Court disagreed with the Government’s position, explaining that its argument “falters on the way language naturally works.” In the majority opinion, Justice Kagan provided the example of an applicant for naturalization who fills out her naturalization application in a government office with a knife hidden in her purse, a knife that is not mentioned or used. The hypothetical applicant violated the law prohibiting bringing weapons to a federal building and “has surely done so in the course of procuring citizenship,” however, the hypothetical applicant has not obtained citizenship “contrary to law,” because the violation of the law banning weapons in federal buildings is merely coincidental with the acquisition of citizenship. 
 
The Court reasoned that by following the Government’s logic, it would open “the door to a world of disquieting consequences,” where a lie would always provide a basis for the Government to rescind citizenship, and therefore create a “profound mismatch between requirements for naturalization” and requirements for denaturalization. In 1988, the Court distinguished between lies told for a material purpose and lies told out of embarrassment, fear or a desire for privacy: “[w]illful misrepresentations made for other reasons, such as embarrassment, fear or a desire for privacy, were not deemed sufficiently culpable to brand the applicant as someone who lacks moral character,” a requirement for naturalization. Kungys v. United States, 485 U.S. 759, 780 (1988). By the Government’s logic, the Court held, an applicant who misrepresents that he belonged to a support group out of embarrassment or a desire for privacy, may simultaneously be granted citizenship despite the misrepresentation but then be stripped of that citizenship because of the representation. 
 
In practice, the Court suggested that its ruling in Maslenjak requires that a jury deciding whether a defendant acquired citizenship through a lie must decide how “knowledge of the real facts would have affected a reasonable government official properly applying naturalization law.” In other words, a jury must determine if knowledge of the real facts would impact the defendant’s statutory eligibility for naturalization. For example, if a defendant lied about the amount of time he had spent in the United States prior to filing his application for naturalization, and if the truth would make him statutorily ineligible to naturalize, the lie would be material and therefore the Government would be able to rescind citizenship. 
 
The Court also noted that materiality also applies to a lie, which standing alone, would not lead to a denial of naturalization, but “could have led to the discovery of other facts” which would lead to such denial. In those cases, the Government would have to demonstrate that having truthful information would have allowed immigration officials to investigate further and this additional investigation would have led to the discovery of information that would render the applicant ineligible for naturalization. The defense to such alleged material misrepresentation would be for an applicant to show eligibility to naturalize. 
 
In his separate opinion concurring in part and concurring in judgment, Justice Gorsuch agreed with the majority that the “plain text and structure of the statute before us require the Government to prove causation as an act of conviction: The defendant’s illegal conduct must, in some manner, cause her naturalization.” Justice Gorsuch objected to the majority providing guidance on how the requirement to show causation could be applied other cases. Justice Alito, while concurring in the judgement of the majority, wrote in a separate opinion that a naturalization applicant’s lie has to be material, but “does not require proof that a false statement actually had some effect on the naturalization decision.”

Aga Haupt is the founding partner of Haupt Immigration Law. She received her J.D. from University of Mississippi in 2005. Aga may be reached at 615-679-0069 or aga@hauptimmigrationlaw.com.
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Tennessee Judges Required to Make Special Findings in Requests for SIJS Predicate Orders

 
The Tennessee Court of Appeals recently issued the state’s first opinion on Special Immigrant Juvenile Status (“SIJS”). The court’s decision ensures that judges cannot arbitrarily deny immigrant children the opportunity to remain in Tennessee after fleeing abuse, abandonment or neglect in their home countries.
 
Pursuant to 8 U.S.C. § 1101(a)(27)(J), the term “special immigrant” means:
 
(i) an immigrant who is present in the United States who has been declared dependent on a juvenile court located in the United States or whom such a court has legally committed to, or placed under the custody of, an agency or department of a state, or an individual or entity appointed by a state juvenile court located in the United States, and whose reunification with 1 or both of the immigrant’s parents is not viable due to abuse, neglect, abandonment, or a similar basis found under state law;
(ii) for whom it has been determined in administrative or judicial proceedings that it would not be in the alien’s best interest to be returned to the alien’s or parent’s previous country of nationality or country of last habitual residence; and
(iii) in whose case the Secretary of Homeland Security consents to the grant of special immigrant juvenile status, except that - - 
(I) no juvenile court has jurisdiction to determine custody status or placement of an alien in the custody of the Secretary of Health and Human Services specifically consents to such jurisdiction; and  
(II) no natural parent or prior adoptive parent of any alien provided special immigrant juvenile status under this subparagraph shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this chapter; 
 
8 U.S.C. § 1101(a)(27)(J) (2014). 
 
In other words, in order for a child to qualify for SIJS, a state court must first determine that reunification with one or both of a child’s parents is not viable due to abuse, abandonment, neglect, or a similar basis under state law and that it is not in the child’s best interests to be returned to his or her home country.  If the court makes these determinations and places a child in the custody of a private person, then the child is considered prima facie eligible for SIJS.  The Immigration Act of 1990 first introduced SIJS as a form of relief and it was clarified and expanded as part of the Trafficking Victims Protection Reauthorization Act of 2008.  Even with a form of immigration relief nearing its 30th birthday, some state juvenile courts have still refused to make the requisite findings.    
 
This landmark Tennessee decision follows the sad story of a child from Guatemala who was forced to quit school in the 6th grade in order to work in a corn field to help support his family.  With his father out of the picture, the child’s mother was the sole financial provider for the child and his two younger sisters.  Even with the child’s additional income, the child’s mother was unable to adequately provide for him.  Some days the child would not eat because he did not have time with his work schedule.  In July 2015, the child left Guatemala behind and traveled to the United States where he was reunited with his paternal uncle.  The child’s uncle has given him, for the first time, a normal childhood.  The child no longer has to work, he is able to go to school, and he gets to eat every single day.  The child is happy and thriving here in his uncle’s care, and it is the child’s express desire to remain in the United States with his uncle. 
 
The child’s uncle filed a petition in Rutherford County to become his legal guardian.  The uncle did this in part, so his nephew could apply for SIJS and stay in the United States with him.  Unfortunately, Rutherford County judge felt that he did not have the jurisdiction to determine whether it was in the best interest of the child to be returned to Guatemala.  Without that specific finding from the state court judge, the child cannot apply for SIJS.  The Rutherford County judge believed, for some reason, that he did not have the “authority” to determine whether the United States or Guatemala was a better place for the child to live.  
 
The Tennessee Attorney General has opined that TCA § 34-2-101 grants juvenile, probate, circuit, and chancery courts concurrent jurisdiction to appoint guardians of the person for minors, including undocumented minors.  Tenn. Att’y Gen. Op. 14-84 (Sept. 16, 2014).  The Sixth Circuit Court of Appeals has held a state court has the jurisdiction to make the determination regarding whether sending a child alien back to his or her home country would be in the child’s best interest.  Gao v. Jenifer, 185 F.3d 548, 556 (6th Cir. 1999).  However, even with guidance on the matter, the trial court maintained that it was not an appropriate forum to determine whether living in the United States or Guatemala would be in the child’s best interest.  
 
Mid-South Immigration Advocates, a Memphis-based nonprofit immigration law firm, appealed the court’s refusal to make this determination, arguing that since the judge has the authority to appoint a guardian of an undocumented child domiciled in Tennessee, the judge necessarily has the authority to include any other directives as it “determines is appropriate to properly care for” the minor.  T.C.A. § 34-2-105(2).  Further, in any proceedings involving the care and custody of a minor child, “the determination shall be made on the basis of the best interest of the child.”  T.C.A. § 36-6-106(a).  The Tennessee Court of Appeals agreed with the child’s attorney, adopting the reasoning and analysis employed by the Court of Special Appeals of Maryland (“Maryland Court”) as contained in In re Dany G., 117 A.3d 650 (Md. Ct. Spec. App. 2015).  The Maryland Court essentially held two things: (1) the federal law directs states to apply state law, and (2) state judges are experts when it comes to applying state law.  Thus, as the judges and chancellors of the Rutherford County Chancery Court are in fact state court judges with expertise in applying state law, the court has the authority to determine whether it is in the child’s best interest to remain in Tennessee or to be returned to his or her home country, regardless of the child’s immigration status.        
 
This ruling supports Tennessee’s most vulnerable immigrant children, ensuring that many will be able to continue enjoying the benefits of living a life of safety and dignity with their families and legal guardians in Tennessee.

Caroline M. Burriss is a 2017 graduate of the University of Memphis Cecil C. Humphreys School of Law and a staff member with Mid-South Immigration Advocates (MIA). Pending admission to the bar, Ms. Burriss will be MIA’s newest Staff Attorney, focusing her practice on removal defense for unaccompanied minors and asylum seekers.  She may be reached at (901) 244-4367 or burriss@miamemphis.org.
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Letter from the Editor

 
I would like to thank Caroline Burris and Aga Haupt for providing their excellent articles in this issue. I’m always looking for writers and articles on family-based immigration issues, employer-based immigration issues, crimimigration, and immigration court/custody issues. Please feel free to contact me at bbuchanan@sblimmigration.com or 615-345-0266 concerning writing an article.
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SCOTUS Allows Full Trump Travel Ban to Take Effect

The U.S. Supreme Court today allowed the Trump Administration’s latest travel ban to take full effect, including the ban on travel by individuals with a bona fide relationship to a person in the United States, the ABA Journal reports. The order will remain in place until the government’s appeals to orders from federal judges in Hawaii and Maryland are heard and, if cert if granted, until the Supreme Court rules.

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Federal Judge Issues Permanent Injunction on Sanctuary Cities Order

A federal judge yesterday issued a permanent injunction blocking President Donald Trump’s executive order denying funds to cities that don’t cooperate in immigration enforcement, the ABA Journal reports. The order violates the separation of powers, the 10th Amendment’s ban on conscription of local jurisdictions and Fifth Amendment’s due process clause, according to U.S. District Judge William Orrick. Orrick also said Attorney General Jeff Sessions wasn’t credible when he interpreted the executive order in a May memo.
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Attorney Volunteers Needed for Immigrant Family Defense Workshop in Memphis

The TBA Young Lawyers Division and the Tennessee Immigrant and Refugee Rights Coalition will be hosting their final Family Defense Workshop on Tuesday at 6 p.m. at Iglesia Nueva Vida. Volunteer lawyers will provide powers of attorney for individuals in the event of deportation or other immigration enforcement actions. A large turnout of clients is expected so many attorney volunteers are needed. No immigration law experience is required and a brief training will be held prior to the clinic. Those with questions should contact Brandon Pettes or Camila Fyler.
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