Today, President Trump signed the Laken Riley Act into law. The Act drastically expands grounds for expedited removal and significantly expands the scope of mandatory detention for certain noncitizens who are both arrested for or convicted of certain non-violent property related crimes as well as assault of law enforcement. Another notable feature of the Act that could have implications for employment based immigration is that the Act grants State Attorneys General and other state officials standing to sue the federal government in district court for failure to enforce certain provisions of the Immigration and Nationality Act (INA). We outline each of the main provisions of the act below.
Mandatory Detention Provisions
The mandatory detention provisions of the Laken Riley Act apply to:
Individuals who entered the U.S. without inspection;
Individuals who are inadmissible based on attempting to seek immigration benefits through fraud or wilful misrepresentation of a material fact; and
Individuals who entered the U.S. without proper documentation for admission as an immigrant or nonimmigrant.
The statutory language does not specify whether the mandatory provisions apply to past arrests or convictions for the listed offenses, which cover a wide range of property crimes, including burglary, theft, larceny, and shoplifting, as well as assault on law enforcement officers.
In addition, the statutory language leaves room for a broad application of the mandatory detention provisions which could possibly extend to fraud determinations made following a lawful admission as an immigrant or nonimmigrant (e.g., a fraud determination made during an adjustment of status interview or a visa revocation based on suspected fraud in the initial visa application for someone who was already lawfully admitted to the U.S.). Foreign nationals are advised to proceed extremely conservatively in the preparation of all visa applications (including Adjustment of Status Applications, DS-160s, DS-260s, Applications to Extend/Change Nonimmigrant Status, etc.) to minimize any risk of being found to have made a material representation. In addition, foreign nationals need to be extremely careful not to engage in conduct that could be construed as inconsistent with the visa classification under which they were admitted to the United States (e.g., entering as a visitor and immediately filing for adjustment of status).
State Officials Standing to Sue on Immigration Enforcement
In addition, the INA generally requires the Secretary of State to cease visa issuance to “recalcitrant” countries (e.g., those countries that refuse or delay the repatriation of individuals deported from the United States). Under the Laken Riley Act, if the Secretary of State does not discontinue visas, state officials and State Attorneys General now have standing to seek injunctive relief that would compel the Secretary of State to do so. What this could mean in practice is that the Secretary of State could discontinue nonimmigrant and immigrant visa issuance to nationals of a “recalcitrant” country, which currently include India, Russia, and Brazil - each of which have a significant amount of foreign nationals working in the United States on high skilled visas - and if the Secretary of State failed to do so, individual state government officials or State Attorneys General could sue to compel the Secretary of State to cease visa issuance to these countries.
Legal Challenges are Expected
The Laken Riley Act is expected to face numerous legal challenges and the immigration bar is waiting on clarification from the Administration with respect to what class of noncitizens the mandatory detention provisions apply. D&S will continue to monitor legal developments pertaining to the Laken Riley Act and provide updates as more information becomes available.
Please note that the above is for informational purposes only and does not constitute legal advice. For specific questions about eligibility for immigration benefits, please contact your team at D&S.