Author: Beth Stickney

Update:  On January 13, 2018, US Citizenship and Immigration Services (USCIS) announced that it will resume processing applications to renew DACA status and work authorization in compliance with the January 9th Federal Court order discussed below.  Only persons who already had DACA can apply; USCIS will not accept applications from persons who had never had DACA protections previously.

On February 13, 2018, a second Federal District Court in New York also ruled against the government’s rescission of DACA  and ordered USCIS to process DACA renewal applications under the same terms as defined by the California federal court order.

Those interested in renewing should consult with experienced immigration attorneys for more information.  Since the government is appealing the Court’s ruling, this relief may be short-lived.

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On January 9, 2018 the Federal District Court for the Northern District of California ruled that the Administration’s decision rescinding the Deferred Action for Childhood Arrivals (DACA) program was based on a “flawed legal premise” and should be blocked from taking effect. For background on DACA, read this post.

What does this decision mean for DACA holders?

The Court’s order applies nationwide.   It orders the government to continue processing DACA applications from those who already have had DACA. A person who has never had DACA will not be able to file a first-time application.

Estimates are that over 13,000 DACA holders have already lost their DACA status and their permission to work. Under this order, the government must allow them to apply to renew both their DACA status and their work authorization. Should this order stand, the more than 8500 people whose DACA status and work permits will expire each week starting on March 6, 2018, can apply to extend their status.   The order does not allow DACA holders to apply for “advance parole” so that they can temporarily leave and reenter the U.S., however.

What’s next?

In a highly unusual move, the government has asked the Supreme Court to take up its appeal, without first having appealed to the Federal Circuit Court of Appeals.  This decision is a reprieve, but not a solution for those with DACA. These young adults need a path to permanent residency, not temporary fixes that leave them and their families, communities and employers in a cloud of uncertainty.

Congress must pass a bill creating a path to permanent residency for the DACA/Dreamers.  That debate is ongoing as of this writing,

LD 1492, An Act to Attract, Educate and Retain New Mainers to Strengthen the Workforce. Sponsor: Sen. Roger Katz

LD 1492 addresses Maine’s shrinking labor supply by recognizing immigrants as a critical part of the solution. Passed out of the Committee on Education and Cultural Affairs with 11-2 support, it was later carried over to 2018.   At a January 31, 2018 work session, LD 1492 once again received strong Committee support.  As amended, the bill would provide funding to expand the availability of adult English as a Second Language (ESL) classes, offer combined ESL and job training at worksites in public/private partnerships, expand the New Mainers Resource Center model operating in Portland into the Lewiston-Auburn area, and provide funds for planning grants for communities experiencing growing influxes of immigrants to assess services needed to help reduce brain waste and accelerate immigrant integration.

There was no 2018 testimony taken, but at last year’s public hearing, the bill received broad support from Maine’s business community, including several MeBIC partners, such as the Maine State Chamber of Commerce, Coastal Enterprises, Inc., the Maine Healthcare Association, Barber Foods, Pro Search, Inc., SIGCO, Inc. Smith’s Farms, as well as from adult education providers, the Lewiston City Council, other individual employers, and Maine residents. The Maine Innkeepers Association and the Maine Restaurant Association also submitted testimony supported key portions of the bill.

The bill is now headed to the full Legislature for a vote.  See a summary here.

English language skills are one of the biggest barriers hindering immigrants from reaching their full potential in the workforce and in our communities. Maine’s immigrants want to improve their English, but often face daunting waiting lists to get into adult education English as a Second Language (ESL) classes in Portland and Lewiston, or find that classes matching their level of English are simply not offered yet in communities whose immigrant populations have been growing recently, such Augusta, Bangor and Biddeford. Moreover, research has shown the effectiveness of contextualized ESL classes, and workplace based classes combined with job training, as proposed in the bill, improve both workplace skills, and also ESL class accessibility, so that students don’t need to choose between the short term need to work and their long term learning goals.  LD 1492 would take a strong first step at lowering barriers to immigrant integration, benefiting immigrants and Maine’s labor supply alike.

MeBIC urges Maine’s business community to contact their Representatives and Senators to voice their support of LD 1492.   For further information about LD 1492, contact Beth Stickney at MeBIC.

On January 25, 2018, the Administration released its “White House Framework on Immigration Reform & Border Security”, whose “pillars” featured prominently in the President’s State of the Union address. Previously, the Administration had not been clear on what it would accept in any deal to provide a path to permanent legal status for those with DACA, the so-called “Dreamers”, but this framework makes a deal harder, rather than easier, to reach.

What are the “Four Pillars”?

The semi-good:

• A path to legal status for those with DACA, and those who were DACA eligible but never got the chance to apply. This would legalize an estimated 1.8 million immigrants youth who are already integrated into our communities, studying, working, serving in our military, and paying taxes. While this is a good start, the proposed 12 year long process relegates these young adults to long-term second-class status, and prevents them for years from being able to work in jobs that are restricted to U.S. citizens, for no rational reason.

The bad:

• Border security measures. This “pillar” would include billions of dollars for the border wall, despite its lack of public support, with even some border state Congressional Republicans and conservative think tanks While many Democrats would agree to technology and personnel security upgrades, the wall, as envisioned by the Administration, would be ineffective and a waste of taxpayer funds, especially when about half of the undocumented population enter legally and overstay their visas. This “pillar” would also strip due process rights from those crossing the border in search of asylum, in violation of U.S. obligations under international law.
• Drastic cuts to immediate family immigration. The Administration proposes to “emphasiz(e) close familial relationships” and end “extended family chain migration”. This is patently false. Current law does not allow extended family to immigrate. Permanent residents (green card holders) can sponsor only their spouses and unmarried children. U.S. citizens can, over a period of many years, bring their entire immediate families, including their spouses, fiancé(e)s, children of any age and marital status, parents, and siblings. Aunts, uncles, cousin, grandparents and other extended relatives of U.S. citizens are not allowed. This “pillar” proposes restricting family immigration to only spouses and minor, unmarried children of U.S. citizens and permanent residents.   Under these terms, most of us would not be here, since vast numbers of our forebears immigrated in the categories being eliminated. (This includes the President, whose Scottish mother immigrated through her sister, and his German grandfather who immigrated through his brother.)
• Elimination of the Diversity Visa (DV) lottery. The DV lottery was created by Congress in 1990 to give those without immediate family or employer sponsors a chance to immigrate and try their hand at the American Dream. Fifty thousand visas are available annually. The “framework” document states that individuals are selected “without consideration of skills, merit, or public safety.” This is disingenous. DV lottery visas are only issued to those who pass rigorous criminal and national security background checks, and can prove that they have, at a minimum, completed secondary or high school or have at least two years of experience in a skilled trade.  DV lottery “winners” also must prove that they will be able to support themselves in the U.S., and are ineligible for means tested public benefits for their first five years in the U.S. DV immigrants are a reliable stream of new workers for our economy. Changing or eliminating the DV lottery program may indeed be a viable negotiating pawn in the effort to create a path forward for DACA/Dreamers, but the Administration’s ostensible reasoning is dishonest.

The negative economic impact of the Administration’s framework.

In exchange for legalizing up to 1.8 million DACA/Dreamers, the Administration’s proposal would:

• Dramatically reduce family-based immigration: The Administration has already endorsed proposals that are estimated to cut family based immigration by as much as 44 percent. The Administration’s premise is that we have too many immigrants, and that family-based immigrants do not add needed skills and talent to our work force. Centuries of immigration have proven otherwise; family immigrants come with a wide range of education and skill levels, from dishwashers to PhD scientists, and they overwhelmingly work. Current family-based immigrants have higher education levels than native-born U.S. citizens, and are essential to stem our shrinking labor pool as “baby boomers” retire.
• Substitute our current employment-based immigration system with a “points” system: The framework does not mention this shift, but the White House has repeatedly stated its support for revamping our current employment immigration scheme with a system that would assign points for education levels focused on STEM fields, English proficiency, age, wealth, and extraordinary achievement (such as being a Nobel Laureate or an Olympic medalist), as proposed in the RAISE Act, which the Administration endorsed in 2017. While there is widespread agreement that the U.S.’s current employment-based immigration system needs an overhaul, the RAISE Act is not the solution. It would reduce our overall number of employment-based immigrants, and not be tied to job openings. Not every business needs a person with a doctorate in a STEM field. Moreover, most highly educated, motivated professionals who would not qualify. Use yourself as an example, using this tool.

In addition, the Administration would sacrifice family-based immigration for this new points-based system as if there must be a trade off. It repeatedly, but erroneously, states that this is the same system that Canada uses.   However, the Administration fails to mention that Canada’s points based system is in addition to its family-sponsored, employer-sponsored, and refugee immigration components. Moreover, the Administration would allow only the spouses and under 18 year old children to accompany the points-based immigrants. This would discourage many talented people, who would want their college aged children to be able to accompany them to the U.S., from choosing to immigrate to the U.S.

Finally, by endorsing the RAISE Act, the Administration also supports reducing the overall number of employment based immigrants from current levels. This is indefensible when the nation’s unemployment rate has held steady between 4.1% and 5% for two years, and our labor pool, both nationally and in Maine, is shrinking as the Baby Boom generation retires.

Bottom Line: 

Through the recently released “Framework” document and its support of the RAISE Act, the Administration has shown its hand, bowing to immigration restrictionists who categorize today’s immigrants as somehow fundamentally different from the generations of immigrants who came before us and built this country.   This characterization is false, and harms not only our country’s values, but also our ability to progress. Today’s immigrants, like the centuries of immigrants who came before them, bring energy, renewal, and optimism that the “American Dream” is still alive and well.   Our country, and our economy, needs them.

“Travel Ban 4.0”, described more fully in this post, applies to refugees only, indefinitely suspending the ability of refugees already in the U.S. to bring over their “follow-to-join” spouses and under 21 year old, unmarried children who are still abroad, and temporarily suspended refugee processing of any refugees from eleven countries, including Egypt, Iran, Iraq, Libya, Mali, North Korea, Somalia, South Sudan, Sudan, Syria, and Yemen.  (Update:  On January 29, 2018, the government announced that it is no longer suspending refugee processing from the eleven countries listed earlier,  but will subject them to intensified scrutiny – this, notwithstanding that refugees have long endured more scrutiny than any other category of immigrant to the U.S., going through identity, background, and other verifications that typically take 18 to 24 months.)

On December 23, 2017, a Federal District Court in Washington State issued a nationwide injunction blocking enforcement of Travel Ban 4.0 against follow-to-join relatives.  (The court also blocked enforcement of the ban against any persons from the eleven designated countries who have a bona fide relationship with a person or entity in the U.S., as defined previously by the Supreme Court, but that is now likely moot following the government’s January 29, 2018 decision mentioned above.)

On December 27, 2017, the government challenged the District Court’s injunction against implementation of the Travel Ban 4.0 against refugees who have received assurances from refugee resettlement agencies.

Bottom line:    Under the Federal Court’s ruling the government should continue to process  visa applications for follow-to-join relatives of refugees already resettled in the U.S. while this litigation continues.

NOTE:          As a practical matter, the government has put a stranglehold on refugee processing irrespective of any court decisions. Fewer than a third as many refugees were admitted in the first quarter of FY 2018 as compared to the prior three fiscal years as explained in this Wall Street Journal article.     Refugee resettlement agencies across the country are cutting staff because not only is this fiscal year’s 45,000 cap on refugee admissions the lowest number since 1980, but also at the rate refugees are actually being allowed in, barely half that number might actually arrive.  UPDATE:  In Maine, as of March 21, 2018, only 30 refugees had arrived for resettlement (compared to several hundred at the same time in 2016).

How does this affect Maine’s businesses?

• If you have refugee employees, be aware of their stress due to the uncertainty of whether this court decision will hold, and their worries about when their spouses and children, whom they may have been expecting to immigrate soon, will be able to reunite with them here in the U.S.
• Maine has resettled hundreds of refugees annually for decades.   Refugees from four of the eleven targeted countries – Somalis, Iraqis, Syrians and Sudanese – have been long been the majority of those resettled here each year. They become integral members of our communities, working, volunteering, and spending their earnings locally.   With Maine’s historically low unemployment rate and shrinking labor pool, we need workers. Refugees already were subject to more strenuous vetting than any other category of immigrant. Choking off this regular source of new immigrants to Maine will hurt Maine’s economy.

“Travel Ban 3.0” applies to people from Chad, Iran, Libya, No. Korea, Somali, Syria, Venezuela, and Yemen. This ban affected those applying for visas or entry as immigrants (permanent residents) and nonimmigrants (temporary stays). Read this post for more details about the specific immigrants and nonimmigrants affected. It does not apply to refugees.

On Dec. 22, 2017, the 9^th Circuit Court of Appeals ruled against the government and found that the President exceeded his statutory authority when he issued Travel Ban 3.0.   The Court issued a partial preliminary injunction of Travel Ban 3.0 while the case proceeds through the federal courts. The injunction would block implementation of the ban as it applies to persons from the 8 countries who have a “credible bona fide relationship with a person or entity” in the U.S. – including immediate and specified extended family members, and those with a “formal, documented” connection to a business or university etc.

However, the 9^th Circuit court then “stayed” its own preliminary injunction pending review by the Supreme Court, in deference the Supreme Court’s earlier decision on 12/4/2017.

On January 19, 2018, the Supreme Court agreed to hear the government’s appeal of the 9th Circuit’s decision.  Oral arguments are expected in the spring, with a decision by the end of June, 2018.

Update:  On February 15, 2018, in a separate challenge to Travel Ban 3.0, the 4th Circuit Court of Appeals, similar to the 9th Circuit, affirmed the Federal District Court of Maryland’s ruling enjoining portions of Travel Ban 3.0 , but stayed implementation of its ruling since the Supreme Court will be considering the case.

Bottom line: Travel Ban 3.0 remains in effect pending the Supreme Court’s decision. See this post for the impact of Travel ban 3.0.

Update: Government documents reveal that in deciding to terminate TPS, the Administration ignored the advice and reports of its own officials indicating that conditions in Haiti were not ripe for Haitian citizens with TPS to return.   A lawsuit has been filed challenging the Administration’s decision to end Haitian TPS.

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On January 18, 2018, the Administration announced that it will end Temporary Protected Status (TPS) for Haitians.  TPS was offered to Haitians already in the U.S., following the devastating earthquake in their country in 2010.

Congress created TPS to allow citizens of countries hard hit by natural disasters or civil conflict who are already in the U.S. to apply to stay and work here legally until our government determines they can safely return.  TPS is normally granted and extended in 12 or 18-month increments.

The decision to terminate TPS, following one final 18 month extension until July 22, 2019,  will affect about 50,000 Haitians who have been living and working legally in the U.S. since at least 2010.   Their TPS has been repeatedly renewed as Haiti’s recovery has been hampered by flood, hurricanes, and cholera.   The U.S. Embassy in Haiti’s own travel warning states that

The U.S. Embassy remains concerned about the security situation in the southern peninsula departments of Grand Anse and Sud following the devastation of Hurricane Matthew. Embassy employees are not permitted to travel to those departments without special approval for and official trips only.

Medical care infrastructure, ambulances, and other emergency services are limited throughout Haiti.

Data shows that 16% of Haitians with TPS have lived in the U.S. for 20 or more years.  They are parents to an estimated 27,000 U.S. children and their labor force participation is 81%, far higher than that of native-born U.S. citizens.

In Maine, Haitians with TPS work in agriculture, housekeeping, wreathmaking, elder care, hospitality, and myriad other sectors.  With Maine’s shrinking workforce and low unemployment, losing these individuals who are already fully contributing members of our communities is bad not just for them, but for Maine.

Congress must pass legislation to create a path to permanent residency for long-term TPS holders.  Various bills have been proposed to do just that.   Maine’s Congressional delegation should work to resolve this issue urgently.

The current Administration wants to drastically reduce family-based immigration to the U.S. and replace our current employment-based immigration system with a points-based one, as proposed in the Administration supported RAISE Act.    The Administration is also pushing to drastically cut family based immigration as part of any legislative deal to provide permanent status to those with DACA.

As part of its campaign for these reforms, the Administration uses terms that taint honest debate. First, referring to the proposed points scheme as a “merit-based” system infers that our current system is not already merit-based. In reality, immigrants through employment must meet strict educational and skill requirements. In most cases (with exceptions for immigrants already internationally renowned in their fields), the U.S. employer must prove to the government that the position requires highly specialized skill or professional education and experience, and that the immigrant it wants to hire meets or exceeds the requisite criteria.

Similarly, the Administration is wrong to describe family-based immigration as “chain migration” that floods the U.S. with immigrants’ extended family members.   In reality, immigrants can petition only for their immediate family members. Refugees and asylees can bring only their spouses and children who are unmarried and younger than 21. Permanent residents (“green card” holders), can bring only their spouses and unmarried children of any age.  U.S. citizens can bring, in addition to their spouses and unmarried children, their married children, parents, and siblings – in other words, their immediate family members.  The U.S., in fact, is more restrictive than some other countries.   For example, both Canada and the U.K. allow grandparent immigration, which is not allowed here.

For most of these immediate family members, the U.S. immigration process is punishingly long. For example, as of January 2018, there was a seven year wait for adult (over 21) children of permanent residents to immigrate, and the wait was only slightly shorter for unmarried adult children of U.S. citizens.  Married children of U.S. citizens waited nearly twelve years, and siblings of U.S. citizens waited over 13 years to immigrate. The waiting lists are even longer for certain countries.  A naturalized U.S. citizen originally from the Philippines must wait about 13 years to be reunited with her adult child, about 23 years to be reunited with her married child, and about 24 years to be reunited with her siblings.  A naturalized U.S. citizen from Mexico will wait over 21 years for his unmarried child, over 22 years for his married child, and over 20 years for his sibling to gain residency in the U.S.

The Administration also disparages family-based immigration by implying that these immigrants bring no talents and skills to enrich our economy and workforce. Throughout our recorded history of immigration, that has simply not been the case.   Whether they are Ph.D. researchers, engineers, and entrepreneurs, or caregivers, farm workers, and housekeepers, today’s  immigrants participate in the workforce at higher rates than native-born U.S. citizens, and like generations of immigrants before them, keep our country and our economy growing and vibrant.

MeBIC’s Beth Stickney was one of several immigration lawyers reacting in a Portland Press Herald article to the Department of Homeland Security’s January 8, 2018 announcement ending Temporary Protected Status for citizens of El Salvador. Learn more about the government’s decision here.

On January 8, 2018, the Department of Homeland Security announced that it will end “Temporary Protected Status” (TPS) for about 200,000 citizens of El Salvador who have been living legally and working in the U.S. with that status since earthquakes devastated their country in early 2001. The initial TPS designation sprang from that natural disaster, but TPS has been extended repeatedly for Salvadorans in 18 month increments because of instability from an economy still struggling to recover, one of the highest homicide rates in the world, and rampant crime and gang violence.  Despite the fact that these challenges continue (as indicated in this 2017 State Department report about the country’s capital, although the State Department appears to have recently scrubbed its website of its long-standing El Salvador travel warnings), Salvadorans are being given until September 9, 2019 to depart the U.S.

More than half of Salvadorans with TPS have lived in the U.S. for two decades or more. Many arrived when they were younger than 16 and have lived over half of their lives here. They are parents to approximately 200,000 U.S. citizen children, and have put down roots here, buying homes, starting businesses, contributing to our communities as workers, volunteers, taxpayers and consumers.

Salvadorans with TPS participate in the labor force at far higher rates than the native-born population (88% participation compared to 63%), and are integral members of our economy.   In Maine, they work in our hospitality, caregiving, food processing, agriculture, construction and other industries – sectors that are crying out for more workers as Maine’s unemployment rate persists at or below 4% for more than two years.

Forcing these long-term members of our communities to return to El Salvador is inhumane, and economically unsound as well.   Congress must work to create a path to permanent residency for Salvadorans with TPS before their status expires in 2019.

USCIS announced on November 14, 2017, that the cap of 33,000 H-2B non-agricultural seasonal work visas for the first half of FY2018 (Oct. 1, 2017-Sept. 30, 2018) has been reached.  Petitions subject to the cap with employment start dates prior to April 1, 2018 will be returned to the petitioners.  Cap exempt petitions will still be accepted, as will petitions for H-2B visas for seasonal employment that will begin after April 1, 2018.

H-2B visas are used particularly in Maine’s seasonal hospitality sector. A one-time 15,000 bump in the number of available H-2B visas created by Congress to respond to the shortage of H-2B visas during the second half of FY 2017 expired on September 30, 2017.

Maine employers who want details about which workers are cap-exempt,  or who want to check the number of H-2B visa petitions already accepted that count towards the 33,000 visa cap for the second half of FY 2018 (April 1 – Sept. 30, 2018) can check here.

On December 6, 2017, MeBIC participated in a press conference in Bangor urging Congress to act before the end of the year to pass legislation creating a path to permanent residency for those with DACA status.   Speakers included former Bangor Mayor Joe Baldacci, followed by Dana Connors, MeBIC Board member and CEO of the Maine State Chamber of Commerce, Megan Sanders, Esq, of Penobscot County Community Health Care, Jack McKay of the Eastern Maine Labor Council and Board member of the Maine AFL-CIO, and MeBIC’s Beth Stickney.

Beginning March 6, 2018, about 8500 DACA holders each week will lose their legal protections and their work authorization, jeopardizing their ability to pay for college, to work, to serve in our military, and to contribute to their families and their communities.

It will take time for Immigration officials to get any new residency application process up and running. Congress must act before the end of this year to pass the Dream Act of 2017 or other durable solution.  Otherwise, DACA holders will face a gap in their employment authorization status that will force employers to have to lay them off, and cause the DACA holders and their employers undue hardship, even here in Maine.

See some of the media coverage here:

• Maine Public radio (quoting MeBIC Board member Dana Connors)
• Fox22/ABC7 TV
• WABI 5 TV

On December 4, 2017, the Supreme Court issued a decision allowing the Government to carry out the third iteration of its “travel ban” while the lawsuits challenging the ban make their way through the federal courts.

While the litigation is ongoing, those targeted by “Travel Ban 3.0” will not be able to get visas or enter the U.S. unless they can prove, among other criteria, that a waiver of the bar in any individual case would be in the national interest.   As a practical matter, the average person is unlikely to be able to meet that standard.   (As of Feb. 15, 2018, only 2 waivers had been granted out of over 6500 visas requested since December 4th).

Following this Supreme Court ruling, Travel Ban 3.0 bars U.S. immigrant (permanent residency) or nonimmigrant (temporary) visa issuance to or entry of nationals of the following countries:

• Chad, Libya and Yemen: All immigrants and, nonimmigrant (temporary) visitors for pleasure or business.  (Note: as this Update describes, on April 10, 2018, the Administration removed Chad from the Travel Ban).
• Iran: All immigrants and nonimmigrants, with the exception of student and exchange (F,M and J) nonimmigrant visa holders (who nonetheless will undergo extra scrutiny).
• North Korea and Syria: All immigrants and nonimmigrants.
• Somalia: All immigrants. All nonimmigrants will be subject to extra scrutiny.
• Venezuela: Certain government officials and their family members, traveling on pleasure (B-2) or business (B-1) nonimmigrant visitor visas.

The ban applies to people from the named countries who were outside the U.S. and did not have valid, previously issued, U.S. visas on the ban’s effective dates. (For some individuals, that is September 24, 2017, but for others it is October 18, 2017. Those needing further clarification should speak with a competent immigration attorney.)

It does not apply to:

• Dual nationals using the passport of their non-targeted country.
• Permanent residents (green card holders), or those who already have refugee, asylee, withholding of removal or Convention against Torture status in the U.S., who are from the targeted countries and are returning from travel abroad.
• Those already granted advance parole returning from travel abroad.
• Persons granted admission or parole into the U.S. on or after the effective dates.
• Diplomats or those with similar visas.
• Theoretically, it also does not apply to those fleeing persecution and seeking protection, but that exception may be meaningless in practice.

How does this effect Maine businesses?

• If you have immigrant employees from any of the named countries, be aware of their stress due to the uncertainty of when their relatives, whom they may have been expecting to immigrate soon, will be able to reunite with them here in the U.S.
• Any employees (whether naturalized U.S. Citizens, permanent residents, refugees or asylees, etc.) from the specified countries can expect a heightened level of questioning at U.S. ports of entry following any travel abroad, despite the fact that Travel Ban 3.0 is not supposed to apply to them.  They should be advised to consult with a competent immigration attorney before making plans to travel abroad.
• Any employee from one of the named countries who is here on a nonimmigrant work visa issued prior to the ban’s effective dates should consult with a competent immigration attorney before making any plans to travel abroad, especially if the visa would need renewal abroad before the employee could return to the U.S.

On July 11, 2017, one week before the new International Entrepreneur Rule (IER), discussed here, was to take effect, the Administration issued a final rule delaying implementation of the IER (the “delay rule”), and requesting public comments after the fact.  The IER would have created a pathway for certain international entrepreneurs to apply for up to five years of temporary legal status (called “parole”) in the U.S. to launch their businesses, and potentially gain permanent residency in the meantime.

A lawsuit was filed by several international entrepreneurs and investors challenging the delay rule (National Venture Capital Association v. Duke). On December 1, 2017, the Federal District Court for the District of Columbia ruled for the plaintiffs, and vacated the delay rule. The Government requested a stay of the decision which was denied.

As a result, the IER, originally intended to take effect last July, is now in effect.   The government announced that it will comply with the Court’s order, but in that announcement it reiterated that it still intends to rescind the IER, and is at work on a proposed rule to do so.   The government nonetheless will have to accept notice and comment before publishing a final rule.

While in theory, the Court’s ruling means that international entrepreneurs who meet specified eligibility criteria can now apply for parole for an initial 30 months to launch their businesses, parole decisions are always discretionary.

Given the Administration’s clear hostility to the rule, it remains to be seen whether applications under the IER will be adjudicated fairly, or whether USCIS will receive signals to discretionarily deny them.   This would be short sighted, given the impressive track record of immigrant entrepreneurs in the U.S.,  who will take their drive, creativity, and economic contributions elsewhere if the U.S. chooses not to make room for them.

International entrepreneurs and their U.S. partners or investors should consult with experienced immigration attorneys for further information.

• Why does this matter to Maine’s business community?