- How President Trump’s threat to sign an Executive Order to temporarily suspend immigration to the U.S. affects the South Asian Diaspora.
There is a misconception among the majority of the immigrant community that the Trump administration has made numerous changes to Immigration Law but in actuality that is not the case. The executive branch of the government cannot make or change a law, only the legislative branch can. The Trump administration has made policy changes which are affecting legal immigration, asylum to the United States among many other areas of immigration law. The latest policy change came when President Trump through a late night Tweet announced that he would sign an Executive Order to temporarily suspend immigration to the United States. In this article, I will discuss few of these policy changes which have impacted our South Asian Diaspora. Please be mindful that these policy changes are constantly evolving and ongoing.
The most important thing here, of course, is the recent ban on exclusively online classes, followed by the revocation of that same ban. According to the black letter law, a student visa is not supposed to be issued to anyone taking online classes, but, due to the Coronavirus pandemic, that rule was temporarily put on hold.
As a result, when the President reinstituted the rule against online classes, he was — legally speaking — correct that this was the “black letter law. “With the return of the temporary hold on the rule against student visas for online classes, foreign students can, at least for now, rest assured that, whether their school goes online or resumes in-person classes during this pandemic, they will be able to retain their student statuses in the United States. However, given that this is just a temporary hold on the rule, and the black letter law is still against student visas for online schools, foreigners should not get too comfortable in an exclusively online setting (unless, of course, Congress changes the law altogether).
H-1B Ban and Alternatives
The important thing here is that this is a ban on H-1B visas, not statuses, meaning that a change/extension of status from within the United States is still allowed, but, if somebody goes abroad and tries to get a new H-1B visa, it will be denied. As a result, I do not recommend that anybody in H-1B status travel abroad until this proclamation expires.
Section 3(a)(ii) states that the proclamation only applies to people who do not possess an H-1B visa (or H-2B or L visas) on the date of the proclamation (June 22, 2020 ). Note, there was an amendment made on June 29, 2020, that clarified that this applied only to people who did not have these specific types of nonimmigrant visas and not to all nonimmigrant visas. So, it seems that they are still going to allow people to enter the United States if they hold H-1B visas issued prior to June 22, 2020 (assuming, of course, that these visas are still valid).The people affected by this proclamation, then, are people entering the United States for the first time on H-1B visas (issued after June 22, 2020).
In addition, this proclamation affects people who got a change to/extension of H-1B status inside the United States then left the United States expecting to use their I-797 as a basis for a new H-1B visa to return to the United States. Prior to this proclamation, that would not have been a problem, but now, even with an approved I-797 — and even if they have already been in the United States legally for several years in H-1B status — a new H-1B visa will not be issued.
Note, since this ban applies only to H-1B visas, this seems to indicate that Canadian citizens — who just use their I-797 approval notices but do not get actual visas — would be able to enter the United States even if the H-1B was approved after June 22, 2020. It still remains to be seen, though, how universally this will be followed for (or against) Canadians.
As for everyone else, if they are outside of the United States — or leave, perhaps, due to a sick family member (a very common reason for many people’s immigration problems in the United States) — we have to look for alternatives.
A common alternative for many is the L visa, but that will not work here, because the L visa is subject to the very same ban as the H-1B visa. Another option is to get accepted to a school, get an I-20, and apply for an F-1 visa (given that F-1 visas do not appear to be currently subject to the ban). This will, at least, allow a person to get back into the United States.
If the F-1 visa gets approved, the person can then return to the United States in F-1 status. The person should then attend classes for at least 2-3 months and then, if H-1B is still desired, apply for a change of status to H-1B (given that changes of status from within the United States are still allowed). The person should then continue to attend all classes until/unless the H-1B gets approved. Since the person will have already been counted against the H-1B cap in the past year, there should not be any cap issues, and, by having attended classes for a few months, this avoids any talk of getting a student visa under false pretenses.
Changes in Asylum Law
Technically, there have been no changes to the “law” of asylum, but there certainly have been plenty of changes to asylum policy and enforcement. One of the most important changes is the rule about not being able to get asylum if the person transited through a third country en route to the United States.
This is a variation on the “firm resettlement” rule, which states that, if there is evidence that a person “has firmly resettled” in a third country, then the person is ineligible for asylum. Normally, “firm resettlement” requires evidence that the person has actually set up some sort of ties in that third country. Now, however, most people who pass through a third country en route to the United States are supposed to seek asylum there. This means, for example, that if a person fleeing Central America passes through Mexico en route to the United States but fails to seek asylum in Mexico, then the person is out of luck.
The argument that there is no point fleeing violence in Central America only to move to Mexico, a country that is also plagued with violence, will fall on deaf ears under this new policy. However, if the Central American in this example sought asylum in Mexico but had that Mexican asylum application denied, then that person is free to seek asylum in the United States. Nonetheless, the fact that that person has been denied asylum in Mexico may cause the American asylum officer to question the validity of the person’s asylum claim in the first place, since the claim was already rejected by asylum officers in another country (Mexico, in this example).
As for “domestic violence” as the basis for a “membership in a particular social group” asylum claim, in Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018), then-Attorney General Jeff Sessions said that being a domestic violence victim cannot, in and of itself, for the basis for an asylum claim, as this is an internal police matter for that country and does not rise to the level of “persecution” required for asylum (or “threat to life or freedom,” in the case of withholding of removal).
However, in Grace v. Whitaker, 344 F. Supp. 3d 96 (DC Cir 2018), the District of Columbia circuit overruled A-B-, saying that Attorney General Sessions had failed to follow the Administrative Procedure Act and Immigration Law and that his disallowing asylum claims based on domestic violence was “arbitrary and capricious.” Nonetheless, the Grace v. Whitaker decision was issued by the District of Columbia circuit and is, technically, not binding anywhere else in the United States, meaning that, in the rest of the country, the Attorney General’s decision that domestic violence is not a basis for an asylum claim seems to still be the rule.
Concerning the Trump administration’s attempt to hold that people who arrive in the United States at a place other than a designated port of entry are ineligible for asylum —in 2020, this policy was overruled by the Ninth Circuit in East Bay Sanctuary Covenant v. Trump, 950 F.3d 1242 (9th Cir. 2020). Again, though, this case only applies in the Ninth Circuit, technically, so we have to see how it will be interpreted nationwide.
Amy Ghosh is a practicing lawyer in Los Angeles. She migrated to the U.S. in 1987 and has been married to a (retired) rocket scientist for 35 years. She has two adult children. Before becoming an attorney, she was a biochemist and worked for several well-known hospitals and laboratories. Amy continues to be very much in touch with her motherland India and her favorite city Calcutta. She has recently produced a Bengali movie “Urojahaj-The Flight” by highly acclaimed filmmaker Buddhdeb Dasgupta. Amy is continually looking for a meaningful opportunity to contribute to society through her legal and social work.