Immigration Law Blog


Atlanta Immigration Law Blog

Welcome to the Atlanta Immigration Law Blog, provided by Atlanta, Georgia law firm Brownstein & Nguyen. This blog page is dedicated to immigration matters, legal issues and news. We hope it is informative and helpful.

The information and opinions provided on this page are not legal advice. Please consult with an attorney to discuss your legal issue.

Controversy and Uncertainty Surrounding H-1B Visas

Weeks ago, an Oregon plaintiff filed a lawsuit that challenged the H-1B lottery as violating the immigration law which provides that visas will be issued on a “first come, first serve” basis in accordance with their filing dates. The judge dismissed the case, ruling that the official filing of an H-1B visa occurs only when the lottery winners are randomly selected. In the weeks since this court ruling, H-1B visas have reached their cap for the 2018 fiscal year.

How Does the H-1B Lottery Work?

lotteryAmerican employers can file H-1B visa petitions on behalf of highly skilled foreign workers in specialized fields. Each year, 65,000 employment visas are allocated toward these workers, with an additional 20,000 available for U.S. advanced degree cases. Petitioners may file the visa requests beginning on April 1st each year. All petitions submitted within the first five days will go into the lottery, under which a computer randomly selects who will receive H-1B visas. Once the annual cap has been met, however, the United States Citizenship and Immigration Services (USCIS) will continue to accept applications to extend existing H-1B visas, change the terms of employment for immigrants with H-1B visas, and allow H-1B visa holders to change employers or add a second employer.

Controversy Surrounding H-1B Visas

The Oregon case highlights various controversies surrounding the H-1B visas, which President Trump brought into the public eye earlier this year with an announcement that he was considering an overhaul of the visa program to increase the waiting period for receiving visas and restrict the number of H-1B visas available annually. Such changes, if put into effect, would adversely affect technology companies, higher education and the health care industry which all depend on foreign workers to fill STEM positions. While the current administration seeks to refocus on providing jobs to American citizens, many foreign hopefuls—including the Oregon plaintiff—believe different H-1B reforms are necessary. The plaintiff argued that the lottery is unfair, awarding visas to some applicants and denying them to others based solely on the luck of the draw. The plaintiff argued that a waiting list should be implemented in lieu of the lottery. Although the case was dismissed, it highlights potential problems with the current lottery system.

Brownstein & Nguyen has decades of experience helping immigrants navigate the complicated U.S. immigration laws surrounding temporary visas and green cards. Contact us today to evaluate your immigration case.

Federal Crackdown on Sanctuary Cities

Recently, Attorney General Jeff Sessions announced that The Justice Department will enforce President Trump’s executive order to withhold federal funding from sanctuary cities. Under the order, which was announced January 25, 2017, in order to receive federal grants cities must prove that they have complied with federal immigration laws. According to the executive order:

Tens of thousands of removable aliens have been released into communities across the country, solely because their home countries refuse to accept their repatriation. Many of these aliens are criminals who have served time in our Federal, State, and local jails. The presence of such individuals in the United States, and the practices of foreign nations that refuse the repatriation of their nationals, are contrary to the national interest.

The Attorney General contends that protected immigrants in sanctuary cities are often criminals who threaten the safety of U.S. citizens. President Trump has ordered the Department of Homeland Security to publish weekly lists of local authorities refusing to comply with detention requests. But are sanctuary cities legally mandated to comply with federal detention requests, and do these cities really pose a threat to the safety and security of the American people?

The Legality of Sanctuary Cities

During the 2016 presidential campaign, Donald Trump repeatedly invoked the dangers of sanctuary cities. Legally, immigration issues fall under federal jurisdiction. Federal law enforcement agencies, specifically agents of Immigration and Customs Enforcement (ICE), can request that state and local officials notify them when a noncitizen is released from custody. However, it is up to state and local law enforcement officials to determine whether or not to comply with those requests from federal officials. “Sanctuary cities” are jurisdictions that choose to protect their residents and foster goodwill between local law enforcement and immigrant communities, instead of automatically complying with federal detainer requests.

Do Sanctuary Cities Pose a Threat to National Security?

The Trump administration claims to be cracking down on sanctuary cities because of the increased threat of violent crimes when local law enforcement protects noncitizens from potential deportation. But do the facts support these statements? In a study published in January, University of California at San Diego professor Tom Wong analyzed crime rates in 608 sanctuary counties alongside similarly populated non-sanctuary counties. The study found that:

  • city lights at nightAn average of 35.5 fewer crimes are committed per 10,000 people in sanctuary counties
  • The median household income in sanctuary counties is $4,353 higher on average than in nonsanctuary counties
  • Sanctuary counties have, on average, a poverty rate that’s 2.3 percent lower than nonsanctuary counties
  • Unemployment rates in sanctuary counties are 1.1 percent lower on average
  • Sanctuary counties with smaller populations show more pronounced effects

In the end, the decision to comply with federal immigration detainers rests in the hands of state and local governments. Over the following months, we will see how the threat of revoked federal funding affects sanctuary cities.

Trump’s Revised Travel Ban Blocked by Honolulu Judge

On March 6, 2017 President Trump issued his second executive order to-date, banning foreigners from six Muslim-majority countries from traveling to the U.S. The new executive order, which was due to go into effect on March 15, was a revised version of Trump’s first travel ban, which he rescinded after questions of its adherence to the U.S. Constitution were addressed by the 9th Circuit Court of Appeals. Just hours before the second travel ban was to go into effect, a district judge in Honolulu issued a temporary restraining order to block the president’s revised executive order.

Honolulu Judge Blocks Trump’s Second Travel Ban

lady justice statueOn Wednesday, March 15th, 2017 Judge Derrick K. Watson of the United States District Court in Honolulu blocked the nationwide implementation of President Trump’s new travel ban. The revised ban—which included a 90 day freeze on issuing visas to people from Iran, Sudan, Somalia, Libya, Yemen, and Syria (among other restrictions)—was due to go into effect just hours after the federal judge halted the order. American citizen Ismail Elshikh and the state of Hawaii brought the case to the district court, contending that national security was a thin pretext for a travel ban that was based, at least in part, on a discriminatory intent.

Religious Discrimination Inherent in Trump’s Travel Ban

Trump’s first travel ban—which included a travel block of people from Iraq as well as an indefinite ban of Syrian refugees into the United States—prioritized immigrants facing religious persecution. Because the ban targeted Muslim-majority countries, opponents argued this exemption was tantamount to religious discrimination. The Trump administration claimed that the revisions to the executive order rendered the newest iteration religiously neutral, but because of its continued targeting of immigrants from Muslim-majority countries the Hawaii district court disagreed.

The record before this Court is unique. It includes significant and unrebutted evidence of religious animus driving the promulgation of the Executive Order and its related predecessor.

While the government suggested courts should focus solely on the explicit text of the order and not look at other evidence of intent, Judge Watson concluded that the president’s own statements clearly supported an explicit bias against Muslim immigrants.

The Government appropriately cautions that, in determining purpose, courts should not look into the “veiled psyche” and “secret motives” of government decisionmakers and may not undertake a “judicial psychoanalysis of a drafter’s heart of hearts.” … The Government need not fear. The remarkable facts at issue here require no such impermissible inquiry. For instance, there is nothing “veiled” about this press release: “Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States.”

According to the The Washington Post, recent government reports also undermine the stated purpose of the executive order. One report from the Department of Homeland Security found that the majority of foreign-born terrorists likely adopted their extreme ideology after entering the U.S., not before. The second shows that the highest risk of foreign terrorism is likely to come from countries not included in Trump’s travel ban. Judge Watson concluded that:

Any reasonable, objective observer would conclude, as does the Court for purposes of the instant Motion for TRO, that the stated secular purpose of the Executive Order is, at the very least, “secondary to a religious objective” of temporarily suspending the entry of Muslims.

Citing Judge Watson’s detailed decision, Judge Theodore Chuang of Maryland also issued a preliminary injunction of Trump’s travel ban, stating:

[Judge Watson’s] statements, which include explicit, direct statements of President Trump’s animus toward Muslims and intention to impose a ban on Muslims entering the United States, present a convincing case that the first executive order was issued to accomplish, as nearly as possible, President Trump’s promised Muslim ban. In particular, the direct statements by President Trump and (former New York City Mayor Rudy) Giuliani’s account of his conversations with President Trump reveal that the plan had been to bar the entry of nationals of predominantly Muslim countries deemed to constitute dangerous territory in order to approximate a Muslim ban without calling it one precisely the form of the travel ban in the first executive order.
While President Trump has vowed to fight these decisions all the way to the Supreme Court, only time will tell what’s in store for the administration’s failed attempts to enact a travel ban.

What Repeal of DACA Could Mean for U.S. Economy

Six years ago, President Barack Obama signed the Deferred Action for Childhood Arrivals (DACA) into law, giving hundreds of thousands of young adults who were brought into the United States as children a chance to live a normal life. Those who applied for DACA status and met the requirements were able to go to college, legally work, and get driver licenses to allow them to come out of hiding and become productive residents of the United States without fear of deportation. Now, under the Trump administration, undocumented immigrants, including these young adults and their parents, could lose their right to work legally in this country and countless families could be torn apart. What many fail to realize, though, is that if President-elect Trump makes good on the promise he made to his voters, the U.S. economy will also suffer because of it.

The Economics of Immigration

If DACA is repealed, almost 645,000 undocumented immigrants will lose their right to work in the United States. Businesses would be legally obligated to immediately terminate workers who are undocumented. This would mean having to find and train new employees to fill these job vacancies. According to the Immigrant Legal Resource Center in San Francisco, this could possibly cost businesses up to $3.4 billion dollars.

Social security card applicationHowever, it is not just the cost to businesses that could cause major setbacks if immigrants lose DACA status; there are additional implications to the economy. The U.S. would also lose the tax revenue that comes from the undocumented workers protected by DACA. This means diminished contributions to Medicare and Social Security (losses totaling roughly $4.6 billion and $19.9 billion respectively). These programs are already struggling; the loss of immigrant contributions could mean reducing payments to many elderly citizens who rely on them to live.

If you are currently protected by DACA, it is important to be informed about how potential changes to U.S. immigration law may affect your immigration status. The attorneys of Brownstein & Nguyen are on your side. Contact us for legal assistance with your Atlanta immigration case.

3 Takeaways from the 9th Circuit Court’s Executive Order Ruling

The states of Washington and Minnesota (later joined by 17 more states) filed a lawsuit against President Trump’s recent executive order banning entry into the United States by citizens of 7 majority Muslim countries, claiming the ban harms the interests of the states, their citizens and legal residents. On February 9, a three-judge panel of the 9th Circuit Court of Appeals unanimously voted to uphold federal district judge Robart’s temporary block of President Trump’s administration ban. What does this decision mean for U.S. citizens, refugees, and immigrants?

Upholding Checks and Balances

judge's gavelThe administration argued that the judiciary branch should defer completely to the executive branch on orders purportedly affecting national security, primarily because the court is not aware of pertinent classified information that only the president knows. In upholding lower court’s decision, the appeals court rejected this argument, affirming that under the U.S. constitution the courts play a critical role in acting as a check on the power of the executive branch, including immigration matters.

[T]he Government has taken the position that the President’s decision about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections. . . There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy. . . [T]he Supreme Court has repeatedly and explicitly rejected the notion that the political branches have unreviewable authority over immigration or are not subject to the Constitution when policymaking in that context.

Right to Due Process

The 9th Circuit also held that the states showed a likelihood of success on their contention that the immigration ban violates due process rights afforded to non-citizens as well as U.S. born citizens, naturalized citizens, green card and visa holders.

The procedural protections provided by the Fifth Amendment’s due process clause are not limited to citizens. Rather, they “appl[y] to all ‘persons’ within the United States, including aliens,” regardless of “whether their presence here is lawful, unlawful, temporary, or permanent.” . . . These rights also apply to certain aliens attempting to re-enter the United States after traveling abroad.

No Need for Immediate Action

While the Trump administration claimed that the immigration ban was a pressing matter of national security, the 9th Circuit court held that the administration failed to present evidence supporting the immediate need for the order. The court also considered evidence presented by the states that doing so could harm U.S. interests and those of its citizens and legal residents.

[T]he public has a powerful interest in national security and in the ability of an elected president to enact policies. . . [T]he public also has an interest in free flow of travel, in avoiding separation of families, and in freedom from discrimination. We need not characterize the public interest more definitely than this; when considered alongside the hardships discussed above, these competing public interests do not justify a stay.

After initially seeking reconsideration by the full 9th Circuit, yesterday the Trump administration withdrew its request and told the court it would rescind the travel ban, a complete victory for the states. The president has promised to issue a new executive order soon that complies with the law. The states, immigration advocates and affected families and individual will be watching, ready to challenge the president again if he oversteps his authority.

The attorneys at Brownstein & Nguyen have decades of experience with immigration cases in Atlanta. Contact us to evaluate your immigration case today.

What Immigrants Need to Know about the Ban

When it comes to matters of immigration and national security, the courts often defer to the executive branch. But with President Trump’s recent immigration order, announced with much fanfare late Friday, January 27, 2017, concerned immigration advocates, citizens and affected individuals are pushing back. The ban seeks to temporarily block entry into the U.S. for citizens and immigrants from seven countries in the Middle East, and blocks entry for nearly all refugees. The question the administration and country face: is Trump’s immigration ban unconstitutional?

The 411 on the Immigration Ban

statue of libertyTrump’s immigration ban purports to keep Americans safe by heightening border security. According to the presidential administration, the order has been put in place temporarily while the national security team analyzes and updates vetting procedures for U.S. immigrants. The immigration ban:

  • Puts a 120 day suspension on refugee resettlement into the United States
  • Cut the annual number of refugees allowed into the U.S. from 110,000 to 50,000
  • Indefinitely bans resettlement of refugees from Syria
  • Suspends immigration from Iran, Iraq, Libya, Syria, Somalia, Sudan, and Yemen for 90 days
  • Provides exemptions for foreign diplomats and members of certain international organizations
  • Prioritizes refugees facing religious persecution if it is a minority religion in their country of origin
  • Initially included prohibiting green card holders from reentering the United States, which the administration later clarified was intended only to apply to legal permanent residents suspected of terrorist activity

Because the detention of green card holders occurs on a case by case basis, immigrants on student visas or work visas, among others, may be denied re-entry into the U.S.

Is the Immigration Ban Legal?

Many American citizens and legal residents have pushed back against the immigration ban. An order by Seattle federal district judge James Robart placed a temporary restraining order on the executive order on Friday, February 3rd. This was the second federal judge to do so. The matter has gone to the Ninth Circle Court of Appeals, which is currently debating whether to reinstate Trump’s immigration ban. They are expected to reach a decision this week on the legality of the ban.

If you or someone you know may be affected by the immigration ban, contact Brownstein & Nguyen to evaluate your case.

Trump’s Call to Deport Criminals

As the United States prepares for the transition of power to President-elect Donald Trump, it is a time of uncertainty and fear for immigrants in this country, especially those who may have committed a crime no matter how small. Throughout his campaign, Trump proposed the immediate deportation of criminals. During his first  appearance on CBS’s 60 Minutes after the election, Trump vowed to deport up to three million immigrants who have committed crimes. However, this number is likely inflated and includes both those who are in the United States illegally as well as those have obtained legal status.

A 2013 report by the Department of Homeland Security estimated approximately 1.9 million “removable criminal aliens” are in the United States. That number includes legal permanent residents holding green cards and those with temporary visas, as well as people who have been convicted of nonviolent crimes such as theft and not just those convicted of felonies or gang-related violence.

Is This Even Possible?

National security targetThe possible number of immigrants Trump is targeting is extraordinarily aggressive. According to Kevin Appleby, the senior director of international migration policy at the Center for Migration Studies of New York, Trump “would have to conduct a sweep, or raids or tactics such as those, to reach the numbers he wants to reach. It would create a police state, in which they would have to be aggressively looking for people.”

Essentially, what Trump advocated during the presidential campaign would require special “deportation forces” and an unprecedented increase in staff, resources and cost. Even during President Obama’s two terms (from 2008-2016) when deportations reached all-time highs, the largest number of people deported in one year was 410,000 in 2012. In 2015, that number declined to 235,000.

What You Need to Know

Technically, in the eyes of the law, any immigrant in the country illegally could be considered a criminal. Those who are most are risk for deportation as criminals would be those who have already been convicted and are serving current jail sentences under the law.

Under immigration the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, any immigrant who is targeted for deportation/removal can apply for various immigration benefits if they are eligible. These benefits include:

  • Adjustment of permanent resident status
  • Cancellation of removal
  • Waivers of inadmissibility
  • Asylum
  • Withholding of removal

If you are the subject of government action for deportation or removal, you still have rights. Contact the Atlanta immigration attorneys at Brownstein & Nguyen LLC for help.

What Trump’s New Policies May Mean for Immigrants

The 2016 presidential election has left many immigrants and others concerned with immigration reform reeling. President-elect Donald Trump focused heavily on deportation plans and immigration bans during his candidacy. With the new administration poised to take office in just a few weeks, Trump’s policies c0ould have a major impact on U.S. immigrants.

Trump’s 10 Point Immigration Plan

As outlined on his website, Trump’s immigration plan includes:

  1. barbed wire fenceBuilding a wall on our Southern border (paid for by Mexico)
  2. Detaining undocumented immigrants until they’re deported
  3. Immediately deporting immigrants who have committed crimes in the U.S. (including entering the country illegally) 
  4. Ending sanctuary cities
  5. Terminating Obama’s executive amnesty programs for undocumented immigrants, and increasing the number of ICE agents to deport these immigrants
  6. Suspending visas to certain countries until adequate security vetting can be guaranteed
  7. Ensuring other countries take back people when the U.S. orders their deportation
  8. Implementing biometric entry-exit tracking
  9. Turning off jobs and benefits magnets
  10. Reforming immigration to put American workers first

DACA in Jeopardy

The Deferred Action for Childhood Arrivals (DACA) policy, initially put into place by President Obama in 2012, protects immigrants who arrived as children from deportation by giving them access to temporary work visas. President-elect Trump has promised “on day 1” to reverse executive actions like DACA that protect undocumented immigrants. If he does so, it will remove protected status from some 750,000 immigrants, putting them at immediate risk for deportation. Advocacy groups recommend that undocumented immigrants not currently protected under DACA refrain from applying for DACA status until the Trump administration makes clear their plans for immigration and deportation.

A Tighter Stance on Immigration

Never one to mince words, Trump did not shy from denouncing Mexican and Muslim immigration during his campaign. Although the Trump administration has yet to release an official statement on immigration policy, a leak by Trump transition team member (and one-time candidate for a Cabinet position) Kris Kobach outlined several potential Homeland Security plans.

  • Update and reintroduce NSEERS to screen and track immigrants from high-risk areas (the so-called “Muslim registry”)
  • Add extreme vetting for “high-risk aliens”
  • Use authority from the 1980 Refugee Act to reduce immigration from Syria to zero
  • Increase Immigrations and Customs Enforcement (ICE)

On December 22, 2016 the Obama administration officially terminated the NSEERS program. However, the Trump administration could reinstate it or something similar.

Immigration groups are already pushing back against President-elect Trump’s proposed policies, which threaten the rights and freedom of both documented and undocumented immigrants to the U.S.

Brownstein & Nguyen has decades of experience handling complicated immigration issues. Don’t live in fear of deportation. Contact our Atlanta immigration law office to evaluate your case.

The Uncertain Future of EB-5 Immigration

The EB-5 program offers foreign investors seeking to immigrate to the United States a unique opportunity. Qualifying mmmigrant investors can apply for a green card for themselves, their spouse, and unmarried children under the age of 21 provided that they invest the minimum required capital in a commercial enterprise and create ten full time jobs for lawful US residents within two years. But the EB-5 program has faced significant controversy over its potential for fraud and misuse, highlighted most recently by two Vermont developers who were charged with abusing the program by defrauding investors of millions of dollars. Key components of the EB-5 program are scheduled to lapse on September 30, 2016, and many lawmakers are calling for major reforms.

Proposed Reforms to the EB-5 Program

statue of libertyThe EB-5 investment program awards as many as 10,000 visas to foreign investors annually, bringing over $15 billion of Foreign Direct Investment into the United States from 2005-2015. Developed in 1990 to stimulate economic growth in low-income neighborhoods, the program has recently come under attack for loopholes exploited by unscrupulous developers and business promoters. Congressional lawmakers are taking steps to limit EB-5 investment visa fraud, but they have not yet reached a consensus on appropriate measures. Many developers take advantage of nearby rural and low-income neighborhoods to build high-end developments in prosperous urban areas, which critics argue is an abuse of the EB-5 program. Supporters of the program contend that these urban developments stimulate economic growth by creating jobs in cities. Critics propose an increase in oversight and a limit of 4,000 visas annually for rural and low-income area projects, while developers are pushing for fewer restrictions. So far, Congress has been unable to reach a compromise. Other criticisms of the EB-5 program include national security concerns and creating discontent among immigrants dealing with longer wait-times to enter the U.S. through typical visa channels.

As we approach the lame duck session of Congress, the future of the EB-5 program remains uncertain. While it’s set to lapse on September 30, it’s likely that the EB-5 program will receive a temporary extension at least until after the presidential elections in November.

Brownstein & Nguyen provide skillful, effective representation in a wide range of immigration issues. Contact our Atlanta law offices for current information about the EB-5 program, assistance in obtaining a visa, and answers to other U.S. immigration questions.

Immigrant Parents of Citizen Children

Family ties make for strong bonds, not just emotionally but legally as well. Spouses, fiancés, parents, and children can sponsor a loved one for a green card, expediting the process of legal residence. But gaining lawful residence is more complicated than simply having kids on American soil, and undocumented parents of citizen children have a difficult path to achieving legal status.

Can Citizen Children Sponsor Immigrant Parents?

Short answer? Yes. But there is a long list of caveats and legal hurdles.

parent and child holding handsToday, the United States is home to 5.3 million children with undocumented parents. Of these children, roughly 4.5 million are citizens of the United States. A recent study by the Migration Policy Institute examined the ramifications that parental deportation has on U.S. born children. Kids with deported parents often end up living with friends or relatives, or placed in foster care. These children often face emotional, educational, and developmental difficulties. Parental deportation can also limit children’s access to healthcare and economic benefits. So what options do families have if the parents does not have legal status in the U.S.?

President Obama’s Deferred Action for Parents of American (DAPA) proposed a temporary reprieve for parents of lawful U.S. residents who fit certain qualifications. However, the Supreme Court’s recent decision not to uphold executive action extending DAPA leaves many undocumented parents at a loss. Sponsoring a parent for legal status is more difficult than sponsoring a spouse or child. A U.S. citizen must be at least 21 years of age to petition for a parent, and the parent must also comply with U.S. requirements for a green card. The child must be able to financially support the parent, and the parent must not have over 180 days of unlawful residence in the U.S., or they become inadmissible for a period of up to ten years.

Legal Options for Undocumented Parents

Immigration matters are complicated issues, especially for undocumented parents of U.S. citizens for whom deportation can have significant consequences. Parents of legal U.S. residents who entered the U.S. lawfully may apply for an extended work visa. Undocumented parents of American citizens can apply for cancellation of removal if they face deportation. Unlawful residents may have other legal routes open to them based on their specific cases.

Brownstein & Nguyen has decades of experience handling complicated immigration cases. As an immigrant herself, Tien Nguyen has both personal and professional insight into the U.S. immigration system, and uses these insights to aggressively and effectively advocate for her clients. Contact Brownstein & Nguyen Law for an evaluation of your immigration case.