US Supreme Court Will Review Visa/Travel Ban Next Term; Students, Workers and Family Members Abroad Still Protected From The Ban

News reports are confusing about the US Supreme Court's per curiam decision today to uphold*in part* the visa/travel ban Executive Order (EO). The decision actually is good news for colleges and universities, US employers, and individuals from the affected countries in the United States who have relatives abroad.

The US Supreme Court granted certiorari and will review the consolidated visa/travel ban EO cases in the October term. In the meantime the Court stayed *in part* the preliminary injunctions blocking implementation of the EO.  The EO now may be applied to individuals who "lack any bona fide relationship with a person or entity in the United States." Eliminating the double negatives involved in staying an injunction barring implementation of an EO, this means the EO still does *not* apply to individuals with a bona fide relationship with a person or entity in the United States, including intending refugees who have a qualifying relationship in the United States...Read more.

Looking Ahead: Immigration & International Programs Under the Trump Administration

President Trump’s recent Executive Order 13769 (EO) on immigration caused tumult for many colleges and universities when it was implemented. With more than 20 lawsuits challenging the EO, on Feb. 9 the 9th Circuit Court of Appeals upheld a national temporary restraining order (TRO) granted by U.S. District Court in Washington state. While this is a major victory for the rule of law and constitutional separation of powers, it’s only temporary. Additional court rulings and executive orders on immigration are expected, and the approach is difficult to predict.

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Post by Leigh Cole

Post by Leigh Cole

New DHS Immigration Enforcement Criteria; Future of Travel/Visa Ban

After a short lull in immigration policy action, things are changing again.  Last week the Trump Administration informed the 9th Circuit Court of Appeals that it would issue a new Executive Order (EO) on the travel/visa ban this week which will replace the initial EO and moot the 9th Circuit’s national temporary restraining order. The new EO is expected late this week and has not been released in draft form.  The Trump Administration has offered some information about the new EO as follows: it will not take effect immediately upon issuance, to allow for preparations and avoid the chaos that ensued when the initial EO took effect immediately; it will apply to the same seven countries (Iran, Iraq, Libya, Somalia, Sudan, Syria, Yemen); it will clarify how it applies to dual citizens of a listed country and another country that isn’t on the list; it will be clear that lawful permanent residents of the US are not affected by the EO; it may allow some refugees from Syria. These points address the most obvious legal and operational deficiencies of the initial EO.

Meanwhile late last week the Department of Homeland Security (DHS) issued detailed guidance regarding immigration enforcement for its constituent divisions, US Customs and Border Protection (CBP), Immigration and Customs Enforcement (ICE), US Citizenship and Immigration Services (USCIS) and US Border Patrol.  DHS Secretary Kelly issued two internal DHS memoranda which then were formally adopted on February 20 after approval by the White House Counsel. These memoranda cite legal authority and prior DHS policy and make major changes to immigration enforcement priorities and practices.  Here are a few highlights of the new enforcement policy proposed by DHS:

  • DACA and DAPA specifically are not affected by this new guidance, but in a footnote DHS says DAPA will be revisited in future guidance.  The final version specifically references DACA and DAPA as the exceptions to this new enforcement policy under which DHS “will no longer exempt classes or categories of removable aliens from potential enforcement” (other than DACA and DAPA).
  • DHS will no longer focus on criminal convictions as a basis for removal, but will also prioritize removing aliens who have been charged with a crime even if the charges haven’t been resolved or have admitted criminal behavior, or who have engaged in fraud or willful misrepresentation to any government agency or abused any public benefit program. Read More.
Post by Leigh Cole

Post by Leigh Cole

Dinse Brief: Update on Executive Order on Immigration - TRO Upheld

To: Clients and Friends of the Firm
 
Yesterday the 9th Circuit Court of Appeals upheld in all respects the national temporary restraining order (TRO) granted by US District Court in Washington State.   This is a major victory in the litigation fighting the President’s Executive Order on immigration, but it is by its nature temporary.  The TRO will remain in place for now while this particular litigation continues, allowing all affected individuals to travel for the time being.  But our ability to advise clients effectively still is severely limited by the rapidly changing legal landscape and the uncertainty of next steps.  We can expect additional court rules in this case and others and additional Executive Orders, and at this point we can’t predict what they will say.
 
Procedure – What Could Happen Next?
 
This 9th Circuit appeal came at the earliest moment in this lawsuit.  The States of Washington and Minnesota sued the federal government and requested a preliminary injunction stopping enforcement of the Executive Order until the case is resolved, which could take a year or more unless the parties settle or the case is rendered moot by withdrawal of the Executive Order.  The District Court issued an emergency TRO to last for a few days until the parties could prepare and conduct an evidentiary hearing regarding the merits of the States’ request for a preliminary injunction. The Trump administration appealed the emergency TRO.  A panel of three judges from the 9th Circuit considered the case and declined to bar the emergency TRO.  The parties had the opportunity and were encouraged to submit evidence to the 9th Circuit, for example to show that there is a significant and urgent threat of harm to the US by individuals from the listed countries.  But no such evidence was submitted, not even under seal for review by the judges only. Read More

Post by Leigh Cole

Post by Leigh Cole

Dinse Brief: Update on Executive Orders on Immigration Effecting Business and Employment

To: Clients and Friends of the Firm
 
You may be getting questions about the Executive Order (EO) "Protecting the Nation from Terrorist Attacks by Foreign Nationals” affecting citizens of Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen.  Here are my immediate recommendations with respect to individuals from these countries:

  • All individuals from the listed countries in any nonimmigrant status and applicants for adjustment of status to permanent resident with pending I-485 applicants to adjust status, and their family members, should avoid departing the United States until further notice. This includes travel to Canada, Mexico and other contiguous territories.  At least for now, this includes individuals who were born in one of the listed countries and have become citizens of a country not on the list. The EO directs US immigration officials to stop issuing visas and visa renewals at consular posts and to stop travelers at US ports of entry even if they have unexpired visas and/or unexpired I-94 admission records.  The EO has no direct impact on individuals who are in the United States and remain here.
     
  • The US Department of Homeland Security has confirmed that the EO does not affect lawful permanent residents who already have green cards unless there is specific information that the individual poses a threat to safety or security.  Permanent residents with green cards should be able to return from travel abroad.  That said, I don’t recommend discretionary travel in this environment so if they can avoid travel abroad, that’s the conservative approach for now. Read More.
Post by Leigh Cole

Post by Leigh Cole

Dinse Brief: Update on Executive Orders on Immigration Effecting Higher Education

To: Clients and Friends of the Firm

You may be getting questions from your campus community about the Executive Order (EO) "Protecting the Nation from Terrorist Attacks by Foreign Nationals” affecting citizens of Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen.   Here are my immediate recommendations with respect to members of your campus community from these countries:

  • All international students in any nonimmigrant status (not just F-1 students), J-1 exchange visitors, and employees on your campus in nonimmigrant status, and applicants for adjustment of status to permanent resident with pending I-485 applicants to adjust status, and their family members, should avoid departing the United States until further notice.   This includes travel to Canada, Mexico and other contiguous territories.  This includes individuals who were born in one of the listed countries and have become citizens of a country not on the list. The EO directs US immigration officials to stop issuing visas and visa renewals at consular posts and to stop travelers at US ports of entry for at least 90 days even if they have unexpired visas and/or unexpired I-94 admission records.  The EO has no direct impact on individuals who are in the United States and remain here.
  • The US Department of Homeland Security has confirmed that the EO does not affect lawful permanent residents who already have green cards unless there is specific information that the individual poses a threat to safety or security.  Permanent residents with green cards should be able to return from travel abroad.  That said, I don’t recommend discretionary travel in this environment so if they can avoid travel abroad, that’s the conservative approach for now. Read More.
Post by Leigh Cole

Post by Leigh Cole

Dinse Drop-in Hours - free legal consults for start-ups

We enjoy helping entrepreneurs! The next Dinse Drop-in sessions for start-ups will be:

Tuesday, August 16, 10:00 AM - 12:00 PM

Tuesday, August 30, 10:00 AM - 12:00 PM

Thursday, September 8, 10:00 AM - 12:00 PM

Thursday, September 22, 10:00 AM - 12:00 PM

Meet with a Dinse business lawyer for no charge during the designated hours. Ask legal questions for your business that are on your mind or, if you don't have specific questions, learn what legal issues you should be thinking about for your business.

Come to our offices at 209 Battery Street in Burlington during the designated Dinse Drop-in office hours and ask to see one of our business lawyers who is available for Drop-in consultations that day.

Post by Leigh Cole

Post by Leigh Cole

Must Read for Any Business that Leases Property – FASB Rule Change

In February 2016, the Financial Accounting Standards Board (FASB) announced changes to its standard on lease accounting. While this may not sound exciting, the change is very important for any business that leases real estate or other property.

FASB is a self-regulatory body that establishes the Generally Accepted Accounting Principles, or GAAP, which are used by American accountants. The new lease accounting standard requires a business to account for all long-term leases—i.e., those longer than 12 months—on its balance sheet. To do so, the business must classify the amount it owes on the lease as a liability, and its right to use whatever is being leased as an asset. The FASB standard explains in depth how to calculate these amounts.

Though the standards won’t start to come into effect until the fiscal year after December 15, 2018, it’s important to be aware of the changes and prepare. Businesses that have large outstanding lease balances will have more liabilities under the new standard—which could affect their ability to get a loan or attract investment. Business clients should take an inventory of their current lease agreements and talk with their accountants to see if the new lease accounting standards will significantly impact their balance sheet.

Post by Ted Lawrence

Post by Ted Lawrence

Dinse Brief: "Ban the Box"

Yesterday, Governor Shumlin signed into law legislation which precludes employers from requesting criminal history record information on their initial employment application forms.  Employers may, however, ask about a prospective employee’s criminal history during an interview, or once the prospective employee has been deemed otherwise qualified for the position.  If an employer does make such an inquiry, the prospective employee, if still eligible for the position under applicable federal or state law, must be provided with an opportunity to explain the information and the circumstances regarding any conviction, including any post-conviction rehabilitation. Read More.

Post by Amy McLaughlin

Women at Dinse - 2016 Update

The Vermont Women's Fund Benefit last night featuring Jodi Kantor of the New York Times was an inspirational reminder of the challenges women still face in the workplace and the remarkable success of women at Dinse.  Our firm is proud to be a lead sponsor of the Vermont Women's Fund Benefit, an especially important cause for a law firm leading the way for women attorneys. 

The first time we noted publicly that women are having remarkable success at Dinse, Knapp & McAndrew PC was back in 2010.  Our track record with respect to women attorneys was impressive at that point and we’ve maintained it since that time.  I blogged about this in 2013 and 2010. Our precise numbers change from time to time each year due to new hires and the normal flux in personnel.  Our current snapshot, after the past year’s retirements, new hires and departures, includes 18 partners and counsel of whom nine (50% - eight partners and our one counsel) are women.  Read more.

Post by Leigh Cole

Post by Leigh Cole