Some attorneys have reported companies receiving site visits for people with L-1B visas who have pending extension requests, potentially adding another layer to the Trump administration's scrutiny of business visas.
Fifteen states and the District of Columbia sued the Trump administration Tuesday in New York federal court in an effort to keep it from rolling back the deportation protection program for young immigrants known as DACA, claiming the move was partially spurred by a “discriminatory motive.”
September 5, 2017
James W. McCament
U.S. Citizenship and Immigration Services
Thomas D. Homan
U.S. Immigration and Customs Enforcement
Kevin K. McAleenan
U.S. Customs and Border Protection
Joseph B. Maher
Acting General Counsel
Ambassador James D. Nealon
Assistant Secretary, International Engagement
Julie M. Kirchner
Citizenship and Immigration Services Ombudsman
Elaine C. Duke
Rescission of the June 15, 2012 Memorandum Entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children”
This memorandum rescinds the June 15, 2012 memorandum entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children,” which established the program known as Deferred Action for Childhood Arrivals (“DACA”). For the reasons and in the manner outlined below, Department of Homeland Security personnel shall take all appropriate actions to execute a wind-down of the program, consistent with the parameters established in this memorandum.
BackgroundThe Department of Homeland Security established DACA through the issuance of a memorandum on June 15, 2012. The program purported to use deferred action—an act of prosecutorial discretion meant to be applied only on an individualized case-by-case basis—to confer certain benefits to illegal aliens that Congress had not otherwise acted to provide by law. Specifically, DACA provided certain illegal aliens who entered the United States before the age of sixteen a period of deferred action and eligibility to request employment authorization.
On November 20, 2014, the Department issued a new memorandum, expanding the parameters of DACA and creating a new policy called Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”). Among other things—such as the expansion of the coverage criteria under the 2012 DACA policy to encompass aliens with a wider range of ages and arrival dates, and lengthening the period of deferred action and work authorization from two years to three—the November 20, 2014 memorandum directed USCIS “to establish a process, similar to DACA, for exercising prosecutorial discretion through the use of deferred action, on a case-by-case basis,” to certain aliens who have “a son or daughter who is a U.S. citizen or lawful permanent resident.”
Prior to the implementation of DAPA, twenty-six states—led by Texas—challenged the policies announced in the November 20, 2014 memorandum in the U.S. District Court for the Southern District of Texas. In an order issued on February 16, 2015, the district court preliminarily enjoined the policies nationwide. The district court held that the plaintiff states were likely to succeed on their claim that the DAPA program did not comply with relevant authorities.
The United States Court of Appeals for the Fifth Circuit affirmed, holding that Texas and the other states had demonstrated a substantial likelihood of success on the merits and satisfied the other requirements for a preliminary injunction. The Fifth Circuit concluded that the Department’s DAPA policy conflicted with the discretion authorized by Congress. In considering the DAPA program, the court noted that the Immigration and Nationality Act “flatly does not permit the reclassification of millions of illegal aliens as lawfully present and thereby make them newly eligible for a host of federal and state benefits, including work authorization.” According to the court, “DAPA is foreclosed by Congress’s careful plan; the program is ‘manifestly contrary to the statute’ and therefore was properly enjoined.”
Although the original DACA policy was not challenged in the lawsuit, both the district and appellate court decisions relied on factual findings about the implementation of the 2012 DACA memorandum. The Fifth Circuit agreed with the lower court that DACA decisions were not truly discretionary, and that DAPA and expanded DACA would be substantially similar in execution. Both the district court and the Fifth Circuit concluded that implementation of the program did not comply with the Administrative Procedure Act because the Department did not implement it through notice-and-comment rulemaking.
The Supreme Court affirmed the Fifth Circuit’s ruling by equally divided vote (4-4). The evenly divided ruling resulted in the Fifth Circuit order being affirmed. The preliminary injunction therefore remains in place today. In October 2016, the Supreme Court denied a request from DHS to rehear the case upon the appointment of a new Justice. After the 2016 election, both parties agreed to a stay in litigation to allow the new administration to review these issues.
On January 25, 2017, President Trump issued Executive Order No. 13,768, “Enhancing Public Safety in the Interior of the United States.” In that Order, the President directed federal agencies to “[e]nsure the faithful execution of the immigration laws . . . against all removable aliens,” and established new immigration enforcement priorities. On February 20, 2017, then Secretary of Homeland Security John F. Kelly issued an implementing memorandum, stating “the Department no longer will exempt classes or categories of removable aliens from potential enforcement,” except as provided in the Department’s June 15, 2012 memorandum establishing DACA, and the November 20, 2014 memorandum establishing DAPA and expanding DACA.
On June 15, 2017, after consulting with the Attorney General, and considering the likelihood of success on the merits of the ongoing litigation, then Secretary John F. Kelly issued a memorandum rescinding DAPA and the expansion of DACA—but temporarily left in place the June 15, 2012 memorandum that initially created the DACA program.
Then, on June 29, 2017, Texas, along with several other states, sent a letter to Attorney General Sessions asserting that the original 2012 DACA memorandum is unlawful for the same reasons stated in the Fifth Circuit and district court opinions regarding DAPA and expanded DACA. The letter notes that if DHS does not rescind the DACA memo by September 5, 2017, the States will seek to amend the DAPA lawsuit to include a challenge to DACA.
The Attorney General sent a letter to the Department on September 4, 2017, articulating his legal determination that DACA “was effectuated by the previous administration through executive action, without proper statutory authority and with no established end-date, after Congress' repeated rejection of proposed legislation that would have accomplished a similar result. Such an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the Executive Branch.” The letter further stated that because DACA “has the same legal and constitutional defects that the courts recognized as to DAPA, it is likely that potentially imminent litigation would yield similar results with respect to DACA.” Nevertheless, in light of the administrative complexities associated with ending the program, he recommended that the Department wind it down in an efficient and orderly fashion, and his office has reviewed the terms on which our Department will do so.
Rescission of the June 15, 2012 DACA MemorandumTaking into consideration the Supreme Court’s and the Fifth Circuit’s rulings in the ongoing litigation, and the September 4, 2017 letter from the Attorney General, it is clear that the June 15, 2012 DACA program should be terminated. In the exercise of my authority in establishing national immigration policies and priorities, except for the purposes explicitly identified below, I hereby rescind the June 15, 2012 memorandum.
Recognizing the complexities associated with winding down the program, the Department will provide a limited window in which it will adjudicate certain requests for DACA and associated applications meeting certain parameters specified below. Accordingly, effective immediately, the Department:
 Significantly, while the DACA denial notice indicates the decision to deny is made in the unreviewable discretion of USCIS, USCIS has not been able to identify specific denial cases where an applicant appeared to satisfy the programmatic categorical criteria as outlined in the June 15, 2012 memorandum, but still had his or her application denied based solely upon discretion.
 Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex. 2015).
 Texas v. United States, 809 F.3d 134 (5th Cir. 2015).
 United States v. Texas, 136 S. Ct. 2271 (2016) (per curiam).
 Memorandum from Janet Napolitano, Secretary, DHS to David Aguilar, Acting Comm’r, CBP, et al., “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children” (June 15, 2012).
 Memorandum from Jeh Johnson, Secretary, DHS, to Leon Rodriguez, Dir., USCIS, et al., “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals Whose Parents are U.S. Citizens or Permanent Residents” (Nov. 20, 2014).
The Trump administration announced today that it’s ending a deportation protection program for young unauthorized immigrants known as Deferred Action for Childhood Arrivals, a move that comes after several states threatened to sue if the program wasn’t phased out. Many young people that arrived very young to the U.S. will lose their lawful status and their ability to work legally.
The announcement comes amid reports that President Donald Trump plans to end the 2012 program, which defers deportation for nearly 800,000 young people who entered the United States illegally as children.
The Justice Department said Sessions would “not be taking questions” after the Tuesday morning briefing with reporters. It did not provide any additional information.
Politico, citing sources familiar with Trump’s thinking, reported Sunday night that President Trump had decided to end the so-called Dreamers program with a six-month delay for Congress to act. White House officials told ABC News that the President was leaning toward phasing out the program, but they stressed that it was not a done deal.
Once we know what the annoucement is, ME will be able to provide some guidance for those currently in DACA status.
In Fiscal Year 2017 (Oct. 1, 2016 - June 30, 2017), the Department of Labor (DOL) received 528,146 labor condition applications (LCA) for H-1B visa status petitions. Of those, 6,989 were denied while 38,784 were withdrawn. 482,373 LCAs were certified in FY 2017. For more information about all the LCAs filed during FY 2017, you can visit here.
U.S. Citizenship and Immigration Services (USCIS) will resume premium processing for certain cap-exempt H-1B petitions effective immediately. The H-1B visa has an annual cap of 65,000 visas each fiscal year. Additionally, there is an annual masters cap of 20,000 petitions filed for beneficiaries with a U.S. masters degree or higher.
Premium processing will resume for petitions that may be exempt from the cap if the H-1B petitioner is:
* An institution of higher education;
* A nonprofit related to or affiliated with an institution of higher education; or
* A nonprofit research or governmental research organization.
Premium processing will also resume for petitions that may also be exempt if the beneficiary will be employed at a qualifying cap-exempt institution, organization or entity.
Starting today, those cap-exempt petitioners who are eligible for premium processing can file Form I-907, Request for Premium Processing Service for Form I-129, Petition for a Nonimmigrant Worker. Form I-907 can be filed together with an H-1B petition or separately for a pending H-1B petition.
USCIS previously announced that premium processing resumed on June 26 for H-1B petitions filed on behalf of physicians under the Conrad 30 waiver program as well as interested government agency waivers.
USCIS plans to resume premium processing of other H-1B petitions as workloads permit. USCIS will make additional announcements with specific details related to when we will begin accepting premium processing for those petitions. Until then, premium processing remains temporarily suspended for all other H-1B petitions. USCIS will reject any Form I-907 filed for those petitions, and if the petitioner submitted one check combining the Form I-907 and Form I-129 fees, USCIS will have to reject both forms.
For more information on USCIS and its programs, please visit www.uscis.gov or follow us on Twitter, YouTube, Facebook, and Instagram.
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