Elizabeth Goss updates us on recent developments with the US immigration ban
In the week following the US administration’s executive order on immigration, which included a travel ban for individuals from seven designated countries, we saw a flurry of activity and responses.
First, state Attorneys General joined lawyers from the American Immigration Lawyers Associate (AILA) and the American Civil Liberties Union (ACLU) in filing suits against the federal government that sought to both temporarily and permanently block the order on a variety of constitutional grounds. On the evening of Sunday, 5 February, the Department of Homeland Security (DHS) clarified that legal permanent residents (‘green-card’ holders) were of ‘national interest’ and therefore would be an exception to the order.
The order contained vague terms, with no clear mechanism for determining where an individual is ‘from’. For instance, if someone was born in one country, but obtained citizenship in another, which country are they from?
As I write this on Tuesday, 7 February, there has been much activity. In the middle of last week, we had received information that the US Department of State and the Customs & Border Protection division of DHS were allowing dual nationals to enter the country as both immigrants and non-immigrants, provided that they had citizenship in a non-designated country.
Then we received confirmation that US Citizenship and Immigration Services (USCIS) , the benefits-granting division of DHS, had interpreted the order as relating only to the mechanisms of permission to enter the United States and not one’s status in the United States. This confirmed that applications filed on behalf of individuals from those designated countries would continue to be accepted and processed ‘as normal’. This was great news for those physically present in the United States in a valid status such as students seeking a type of work authorization or others waiting for decisions on legal permanent-residence (green card) cases filed in the US.
Next, late on Friday, 3 February, the Attorney General from the state of Washington and the Attorney General from the state of Minnesota successfully obtained a Temporary Restraining Order (TRO) against certain key sections of the order. This allowed at least a short window of opportunity for those stuck outside the United States to return. But those affected by the original order should note that the TRO that is now in place could change – in fact, could have changed already by the time you read this. Much uncertainty remains ahead.
There has been other activity outside the legal and judicial realms. Among the most vociferous voices in opposition to the order have been institutions of higher education, research organizations and prominent professional associations related to academia and science. This opposition, channeling momentum from the streets and campuses across the United States, was stunning to me. I have worked in and around academia for more than 25 years and I can say that both the speed and the strength of condemnations of the order were notable and atypical for institutions known for their measured responses.
Institutions have also been actively engaging with their communities both within and outside their campuses. Numerous informal meetings have taken place to ensure that the best information is available. Universities and institutions have put a great deal of effort into identifying affected students and scholars and have worked to connect them with lawyers, congressional liaisons and others to assist with questions and if needed, admission back into the United States. This represents crucial confirmation that US academic and research institutions and professional organizations recognize the valuable contributions of the foreign-born scientific community.
There is another bright spot. Last December, the Administrative Appeals Office of USCIS issued a decision, Matter of Dhanasar, that outlines a new framework for the adjudication of National Interest Waivers (NIW) by its officers.
This decision has gone largely unnoticed due to the chaos and concern of the last week or so over the executive order on immigration. While this category has assisted many in the scientific community over the years, the new precedent decision appears to expand the category of scientists, including entrepreneurs, who succeed in self-sponsored legal permanent-residence applications (green cards).
Under Dhanasar, USCIS adjudicators will consider evidence of the applicant’s plans for the future rather than focusing solely on their past achievements, when adjudicating NIW cases. The new framework also seeks to shift the focus towards the national importance of the applicant’s work – a more flexible and useful standard than the earlier focus on its scientific impact. Further, Matter of Dhanasar allows use of alternative evidence of the value of the individual’s contributions in a more direct way than the old standard, which was based mainly on comparison to peers. The decision offers some hope to the scientific community.
Nonetheless, many in the scientific community remain concerned about the ongoing negative impact of the travel restriction on the flow of information and people critical to scientific research and discovery. Beyond the immediate impact on collaborations, there are numerous calls for boycotts and removal of key scientific conferences and symposia from the United States. The call for boycotts, while a stand in solidarity with those colleagues who may not be able to attend scientific conferences and other such activities, including collaborations, in the United States, also threatens the US economy.
The edict itself also encourages researchers to take their talents outside the United States. Many are now afraid to travel in or out of the country because of the uncertainty surrounding the restriction and its overall message of non-inclusion. We will likely be working to repair that message long after the courts rule on the constitutionality of the order itself. And ongoing engagement from all of us will be required in the months and years ahead to ensure the United States’ position as a global leader in science.
These two developments in immigration law — the responses to the executive order, and the Matter of Dhanasar decision by the Administrative Appeals Office — both highlight different roles that the judiciary can play in helping to shape our immigration regulations and their enforcement. As we look to the future, the courts may be an increasingly important venue for foreign nationals and their advocates.
Elizabeth Goss is an immigration attorney and founder of Goss Associates LLC in Boston, Massachusetts.