July 2017 Global Immigration Update

Feature Article:

DATA PROTECTION: AN OVERVIEW – This article provides an overview of recent developments in several countries with respect to data protection.Country Updates

Country Updates:

GERMANY – Effective August 1, 2017, the German parliament is implementing European Union (EU) Directive 2014/66/EC (Intra-Company Transfer (ICT)).

ITALY – The Italian government has reintroduced filing fees for the residence permit “permesso di soggiorno” application.

PERU – There have been new legislative developments in Peruvian immigration law.

RUSSIA – Several Presidential Orders have been issued with respect to tournament security and the lifting of limitations on Turkish travel.

UNITED KINGDOM – Prime Minister Theresa May recently announced to European leaders in Brussels how she plans to deal with European Union (EU) citizens living in the UK post-Brexit.

Feature Article

DATA PROTECTION: AN OVERVIEW

This article provides an overview of recent developments in several countries with respect to data protection.

Italy

Under Italian law, third parties using personal data must comply with Decree 196/2003 (Privacy Code). The law states that any person who engages in the processing of data within their operations shall at a minimum adopt security measures to guarantee complete confidentiality of the personal data processed. The transfer of sensitive data to non-European Union (EU) countries is subject to rules governed by article 43 of the Decree; which provides that the transmission of personal information from Italy to any country outside the EU, even when it is temporary or by use of any method, is only permitted when:

(i) the interested party has expressed consent (for highly sensitive information, permission must be in writing); or (ii) the transfer is necessary for the execution of contractual duties or for the fulfillment of specifications requested by the interested party before the conclusion of the contract or for the termination or the execution of a contract stipulated on behalf of the concerned party.

The transfer of information is also permitted when it is authorized by the guarantor, based on adequate assurances provided by the interested party. However, the transfer of personal data to any country outside the EU from Italy is strictly forbidden when the destination country does not guarantee an adequate level of preservation for the sensitive data.

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Country Updates

GERMANY

Effective August 1, 2017, the German parliament is implementing European Union (EU) Directive 2014/66/EC (Intra-Company Transfer (ICT)).

With the ICT Scheme, the EU Directive aims at providing a common framework for all participating member states (the United Kingdom, Ireland, and Denmark opted out) covering the GATS Mode 4 commitments on Intra-Group Transfers.

Overview: To be subject to this ICT scheme, third-country nationals must obtain a so-called ICT permit issued by the participating EU country where they will spend most of their time. The ICT permit is the first EU immigration permit that allows employment not just in the issuing member state but in a second member state for a period of up to 90 days (short-term mobility). To exercise the right to short-term mobility, the holder of an ICT permit issued by another member state must notify the Bundesamt für Migration und Flüchtlinge (BAMF) of the intended employment by providing information on the salary and work conditions. Unless the German administration actively refuses approval of the intended travel within 20 days, the third-country national is legally allowed to engage in short-term mobility under the conditions notified. Holders of an ICT permit issued by a fellow member state may also relocate for a period of more than 90 days to Germany by applying for a Mobile ICT card at the German immigration authorities before the transfer. If such an application is submitted 20 days before the start of the transfer and the ICT permit of the other EU member state is still valid, staying in Germany and working at the German entity is permitted for 90 days until the immigration authority’s decision has been made.

Eligibility: The ICT Card can be issued to third-country nationals dispatched from their employer abroad to work as a CEO/CFO/comparable manager, specialist, or trainee at a group company in Germany. Its validity is limited to a maximum of three years for CEO/CFO/comparable manager or specialist, and one year for trainees. The group relationship requires a group of companies that functions as a single economic entity through a common source of control, either by direct or indirect 51 percent ownership or domination agreements creating a structure of parent and subsidiary/affiliated companies. Managers are defined as persons directing the host entity or one of its departments with the power to “hire and fire” and who have sole responsibility for a substantial budget and report directly to directors or shareholders. A specialist needs to prove essential and specific knowledge in the area of business and/or the group company or host entity procedures, and a high level of qualification and relevant experience. Before a transfer to Germany, the applicant in the CEO/CFO/manager/specialist category must be employed with an entity of the same company or group for at least six months. A trainee is qualified by a university degree to undergo a paid traineeship during which, as part of the professional development, training in business techniques and methods is received.

Application process: The third-country national aiming for a German ICT Card must file a visa application with the German mission abroad at the place of residence. Visa waiver schemes that exist for other immigration categories and apply to certain nationalities may not be used when applying for the ICT Card. The ICT Card is subject to an internal approval procedure, which includes the German labor authority’s verifying that salary and employment conditions will be comparable to those of German employees.

Note that when dealing with the ICT scheme, the implementations of the framework differ within the different EU member states.

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ITALY

The Italian government has reintroduced filing fees for the residence permit “permesso di soggiorno” application.

The new amounts are:

  • Residence permit card valid from 3 months to 1 year: €40
  • Residence permit card valid from 1 to 2 years: €50
  • EC residence permit card for long-term residents and intra-company residence permit: € 100

Fixed expenses remain in place at about €76 (€30.46 for the electronic card; €16 for the application stamp, and €30 for the mailing fee).

As background, in October 2011, a joint ministerial decree introduced high residence permit application/renewal fees (from €80 to €200, depending on the type and duration of the permit, in addition to the fixed expenses already in place). In 2015, the European Court of Justice judged the tax to be a violation of European Union (EU) regulations. Subsequently, the Regional Administrative Court of Lazio declared the residence permit tax illegal and abolished the fee on applications in May 2016. On September 14, 2016, with Presidential Decree No. 03903/2016, the Council of State decided to suspend the court order of the TAR, Lazio’s Regional Administrative Court, and the fees were temporarily reintroduced, until a final decision was reached. Again, in November 2016, the Council of State confirmed the abolishment of the residence permit application/renewal fees introduced in 2011 (€80 to €200). New fees are in place now, as noted above, but they are lower than the amounts introduced in 2011 that were challenged by the European Court of Justice.

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PERU

There have been new legislative developments in Peruvian immigration law.

On January 7, 2017, legislative decree N° 1350, the “New Law of MIGRACIONES,” was published in the Official Gazette El Peruano under the powers delegated by the Peruvian Congress by virtue of Law No. 30506. The new law establishes a series of changes to the law on migration with respect to citizen security, standards for the internal and external immigration policy of Peru, including some aspects of the National Superintendence of Immigration (MIGRACIONES), and the regulation of border security, among other important aspects. The ultimate aim of the new law is to simplify and order the immigration law protecting the fundamental rights of national and foreign citizens, and strengthen national security.

Legislative Decree N° 1350, in force since March 1, 2017, means considerable progress because it changes the scheme considerably with respect to immigration categories and statuses, and creates several new immigration statuses, among other things. New regulations were published in El Peruano were published on March 27, 2017, with Supreme Decree No. 007-2017-IN.

With the entry into force of the new law, the former Aliens Law N° 703 and its amendment, Legislative Decree N° 1043, were repealed along with Legislative Decree No. 1236 and any rule that is opposed to Legislative Decree No. 1350.

The law includes two important changes:

  1. With respect to temporary migration for business, the new law allows foreigners without the intention of residing in Peru to perform business, legal, contractual, and specialized technical assistance or similar activities in Peruvian territory. The status is granted for 183 days, consecutive or cumulative, over a period of 1 year counted from the first entry into Peru. This status is not renewable.
  2. “Appointed worker” status is now granted not only on a temporary basis, but also as a resident status.

Thus, foreign individuals coming to work in Peru to carry out labor activities in the national territory, which consist of the accomplishment of a specific task or function or a job that requires specialized professional, commercial, or technical knowledge and who are sent by a foreign employer, as well as those who are commissioned by a highly specialized international corporation for the repair or maintenance of machinery or technically complex or advanced systems or mechanisms, or for corporate audits and international certifications, may receive a temporary visa with an authorized stay of 183 days, consecutive or cumulative, over a period of 1 year counted from the first entry into Peruvian territory, extendable for the same term but less than 1 year. In case of residents 365 days, renewable.

Both allow multiple entries. Foreigners with the migratory status of resident—appointed worker will hold a foreign card (carné de extranjería).

A foreigner with this migratory status cannot carry out paid or lucrative activities for his or her own account in Peru.

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RUSSIA

Several Presidential Orders have been issued with respect to tournament security and the lifting of limitations on Turkish travel.

Security measures during tournaments. In accordance with Presidential Order No. 202 dated September 5, 2017, “On security measures during the World Cup FIFA 2018 and Confederation Cup FIFA 2017,” rules of address registration are subject to change. The Confederation Cup will be held from June 1 until July 12 in Moscow, St. Petersburg, Kazan, and Sochi. The World Cup will be held from May 25 until July 25, 2018, in Moscow, St. Petersburg, Volgograd, Ekaterinburg, Kazan, Kaliningrad, Nizhni Novgorod, Samara, Rostov on Don, Saransk, and Sochi.

The changes will affect both Russian and foreign citizens.

Russian citizens who arrive in these cities during the tournaments should apply to register their arrival in the place of temporary residence within three calendar days of arrival.

Foreign nationals who have entered Russia during these tournaments should register their addresses within one calendar (not working) day from the arrival date. Foreign nationals arriving in Russia during a weekend or public holiday should register with the immigration authorities within 24 hours of arrival. Immigration authorities work during weekends and public holidays.

The new address registration rules apply to all foreign nationals regardless of the purpose of the visit, whether tourism, business, or on a work permit, including HQS. The new rules are applicable only during the tournaments and only in the mentioned cities.

The only exclusion to the new rules applies to Russian citizens and foreign nationals who are participants in the Confederation Cup and World Cup, FIFA official representatives and related organizations, and national football associations that are included in the FIFA accredited list.

Limitations lifted on Turkish travel. Also, in accordance with Presidential Order No. 224 dated May 31, 2017, “On termination of particular economic measures related to Turkish Republic,” Turkish nationals may travel to Russia for tourism, business, or work purposes. The limitations that have been in place from November 2015 have been terminated. The order came into force as of May 31, 2017.

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UNITED KINGDOM

Prime Minister Theresa May recently announced to European leaders in Brussels how she plans to deal with European Union (EU) citizens living in the UK post-Brexit.

The UK government has released “The United Kingdom’s Exit from the European Union,” which provides more detail on the Prime Minister’s approach and offering to EU citizens.

The Prime Minister has pledged that EU citizens who arrived in the UK before the triggering of Article 50 will be entitled to stay and those who arrive after the “cut-off” date will be given a two-year “grace period” after Brexit to obtain permission to remain in the UK or return to their home countries. She has not stated when the “cut-off” date will be, but the actual Brexit day, March 29, 2019, is a possibility.

Below is a summary of the proposal:

  • All EU citizens living in the UK will be transitioned into UK domestic law post-Brexit—this is not an automatic transfer, so EU citizens will need to proactively apply to the Home Office to remain in one of the categories under UK Immigration Rules. This will be the UK’s replacement scheme for EU free movement law.
  • In the interim, the UK will be looking to introduce a voluntary scheme for EU citizens to apply under UK Immigration Rules for indefinite leave to remain before Brexit.
  • Beginning on March 29, 2019, a two-year transitional period will apply (until March 29, 2021) where EU citizens resident in the UK will have deemed leave under the UK Immigration Rules. This is the “grace period” to allow EU citizens to regularize their UK status post-Brexit. If the EU citizen does not apply for permission to stay before this two-year grace period ends, the EU citizen will lose his or her right to stay in the UK afterwards.
  • EU citizens who acquired permanent residence in the UK before the “cut-off” date will be given a new settled status. However, the “cut-off” date has yet to be clarified—it could be March 29, 2017, or March 29, 2019. The EU citizen will still need to meet a number of requirements. It has been proposed that upon application, the EU citizen will be assessed on his or her length of residency (usually five years) and on conduct and criminality, mainly to ensure that the applicant is not a threat to the UK. There was no mentioning of the effect of absences, but it is likely that this will be assessed as part of the application. Also, there would only be an entitlement to apply, not an entitlement to indefinite leave (permission) to remain in the UK.
  • EU citizens who are in the process of acquiring the right of permanent residence before the “cut-off date” will be able to continue their track to indefinite leave to remain after five years of residence in the UK if they can show they have been working or studying. It is unclear how much self-employed EU citizens working in the UK will be protected.
  • EU citizens who arrive after the “cut-off” date will need to come under UK Immigration Rules, but the applicable rules have not yet been determined.
  • Irish citizens will not be affected and can remain in the UK. However, family members of Irish citizens (who are not Irish or UK citizens) will not be able to rely on the EU free movement law after Brexit and must apply under UK Immigration Rules, as with any other EU and non-EU citizen.
  • Family members of EU citizens will be treated in line with the principal EU citizen but they too must meet the residence requirement of five years and also demonstrate that they are in a genuine relationship with the EU national—this could include providing evidence of cohabitation. However, family members of EU nationals who arrive in the UK after the “cut-off” date will not be covered by the transitional arrangements and must apply under UK Immigration Rules.
  • Children born in the UK to EU citizens who hold permanent residence before the child’s birth will automatically be British. Therefore, EU citizens must show that they acquired permanent residence under the EU free movement law before their child was born in the UK for their child to be born British.
  • However, children born overseas or children born in the UK to EU citizen parents (who do not have permanent residence) will be eligible to apply for indefinite leave to remain. This would apply regardless of when the child was born or when he or she arrived in the UK. An EU citizen parent who arrived in the UK before the “cut-off” date and must apply for permission to stay in the UK post-Brexit also must apply for the same permission for his or her child.
  • Existing rules on the rights of EU citizens and UK nationals to export UK social welfare benefits to the EU will be protected for those who are exporting such UK social benefits on the “cut-off” date.
  • UK state pensions are currently payable to anyone eligible, wherever they reside in the world, but annual increases (known as uprating) are only payable to those living in the EU due to current EU law. The UK intends to continue to export and uprate the UK state pension within the EU, provided that the EU will also do the same and this will be agreed through negotiations.
  • The UK will seek to protect healthcare arrangements with the view of ensuring that EU citizens living in the UK will still be eligible for National Health Service-funded healthcare in the UK. This is only on the basis that the EU will also provide the same for UK nationals living in the EU but there is no indication as to what these reciprocal healthcare provisions may be.
  • Confirmation that current EU citizen students enrolled in a UK course at a UK university or further education institution in the academic years of 2017/18 and 2018/19 will continue to be eligible for student support and home fee status for the duration of their course.
  • The UK will seek to ensure that professional qualifications obtained before Brexit will continue to be mutually recognized so that these professionals can continue to practice in the UK without unfair detriment or discrimination.
  • The European courts will not have jurisdiction in the UK—the arrangements will only be enforceable through the UK judicial system.

There are still many questions, and many European nationals living in the UK await the formalization of these propositions.

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Travel Ban: FAQs – Updated 07/19/2017

These updated FAQs reflect the situation with regard to President Trump’s executive orders entitled “Protecting the Nation From Foreign Terrorist Entry Into the United States,” banning entry to the United States by certain individuals traveling from Syria, Iran, Sudan, Libya, Somalia, and Yemen, as of 3 pm Eastern Standard Time (EST) on July 19, 2017. New developments are expected to continue to rapidly change the situation.

What are the key points of these Executive Orders?

President Trump signed an Executive Order (EO1) the afternoon of Friday, January 27, 2017, available at https://www.whitehouse.gov/the-press-office/2017/01/27/executive-order-protecting-nation-foreign-terrorist-entry-united-states, which, according to its introduction, was intended to “protect Americans.” After Judge James Robart of the U.S. District Court for the Western District of Washington, on February 3, 2017, issued a TRO [http://cdn.ca9.uscourts.gov/datastore/general/2017/02/03/17-141_TRO_order.pdf] that temporarily blocked the government from enforcing EO1, and the Court of Appeals for the Ninth Circuit on February 9 refused to stay the injunction pending appeal [http://cdn.ca9.uscourts.gov/datastore/opinions/2017/02/09/17-35105.pdf ], President Trump signed a second Executive Order (EO2) on March 6, 2017, available at https://www.whitehouse.gov/the-press-office/2017/03/06/executive-order-protecting-nation-foreign-terrorist-entry-united-states.

EO2 was to become effective as of March 16, 2017, and replaced EO1, though much of EO2 is currently not in effect due to injunctions discussed further below. Certain portions of EO2 came into effect on the morning of June 29, 2017, approximately 72 hours after a Supreme Court decision discussed below that stayed a portion of the injunctions. A Presidential Memorandum issued on June 14, 2017 [https://www.whitehouse.gov/the-press-office/2017/06/14/presidential-memorandum-secretary-state-attorney-general-secretary] had indicated that the provisions of EO2 would take effect 72 hours after the lifting of an injunction against them, to provide time for orderly implementation.

Among EO1’s key provisions were:

  • A 90-day ban on the issuance of U.S. visas to and entry to the United States of anyone who is a national of one of seven (7) “designated” countries—Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. Iraq was subsequently removed from the list when EO2 was issued.
  • An immediate review by the U.S. Department of Homeland Security (DHS) of the information needed from any country to adequately determine the identity of any individual seeking a visa, admission or other immigration benefit and that they are not “security or public-safety threat[s].” This report must be submitted within 30 days and must include a list of countries that do not provide adequate information.
  • The suspension of the U.S. Refugee Admissions Program (USRAP) for 120 days.
  • The implementation of “uniform screening standards for all immigration programs” including reinstituting “in person” interviews.
  • A requirement that all individuals who need visas apply for them in person at U.S. consulates, rather than allowing “mail-in” or drop-box applications.

EO2 added a number of exemptions and discretionary waivers that limited the effect of EO1 in an effort to address some of the concerns raised by Judge Robart in his TRO and by the Court of Appeals for the Ninth Circuit. According to EO2, the 90-day ban on issuance of visas and entry into the United States for nationals of the six designated countries would only apply to those who

  • Were outside the United States on the effective date of EO2;
  • Did not have a valid visa at 5 p.m., Eastern Standard Time on January 27, 2017 (when EO1 was first promulgated); and
  • Did not have a valid visa on the effective date of EO2.

EO2 further exempted several classes of persons from its entry ban:

  • Any lawful permanent resident of the United States (LPR);
  • Anyone admitted to or paroled into the United States after the effective date of EO2;
  • Anyone with a document other than a visa permitting travel to the United States, such as an advance parole document, valid on the effective date of EO2 or afterwards;
  • Any dual national traveling on a passport from a non-designated country;
  • Anyone traveling on a diplomatic or diplomatic-type visa, NATO visa, C-2 visa for travel to the UN, or G-1, G-2, G-3 or G-4 visa;
  • Anyone granted asylum, admitted as a refugee, or granted withholding of removal, advance parole, or protection under the Convention Against Torture.

The references to the effective date of EO2 have been complicated by subsequent developments, especially the June 14, 2017 presidential memorandum [https://www.whitehouse.gov/the-press-office/2017/06/14/presidential-memorandum-secretary-state-attorney-general-secretary], so anyone potentially affected by exemptions linked to the effective date should consult an immigration attorney.

The Supreme Court has temporarily left in place part of two injunctions against EO2, as described in more detail below, so as to create an additional exemption. Under the modified injunctions, the travel ban and refugee ban of EO2 do not apply to “foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.” In its decision issued on June 26, 2017 [https://www.supremecourt.gov/opinions/16pdf/16-1436_l6hc.pdf], the Supreme Court elaborated further on the requirements of such a bona fide relationship:

  • For a bona fide relationship with an individual person to qualify under the modified injunction, “a close familial relationship is required. A foreign national who wishes to enter the United States to live with or visit a family member, like [one plaintiff’s] wife or [another plaintiff’s] mother-in-law, clearly has such a relationship.”
  • For a bona fide relationship with an entity, “the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading EO-2.” According to the Supreme Court, this could include:
    • Students admitted to a U.S. university;
    • “a worker who has accepted an offer of employment from an American company”; or
    • “a lecturer invited to address an American audience”.

The list is not necessarily an exclusive one, but the concept of a bona fide relationship will not stretch so far as to cover, for example, a nonprofit which adds affected immigrants to its client list for the purpose of claiming harm from their exclusion.

In a cable issued the evening of June 28, 2017 and obtained by Reuters [http://live.reuters.com/Event/Live_US_Politics/989297085], the Department of State at first interpreted the “close family” aspect of this Supreme-Court-created exemption to extend only to “a parent (including parent-in-law), spouse, child, adult son or daughter, son-in-law, daughter-in-law, sibling, whether whole or half” and “includ[ing] step relationships.” The DOS cable stated that  ““Close family” does not include grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-laws and sisters-in-law, fiancés, and any other “extended” family members.” Fiancés were subsequently added by later DOS guidance to the DOS definition of “close family”, but DOS continued to take the position that grandparents, grandchildren, and the other listed sorts of relatives were not included.  As discussed in more detail below, however, the U.S. District Court for the District of Hawaii has recently ordered, and DOS has acknowledged [https://travel.state.gov/content/travel/en/news/important-announcement.html], that “grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts and uncles, ‎nephews and nieces, and cousins also be included in the definition of “close familial relationship.” (Cousins, for this purpose, has been interpreted by DOS to mean first-cousins, and half- or step- status is included for all listed relatives, per a DOS cable.)  The same district court order indicates that refugees for whom a formal sponsorship undertaking has been given by a U.S. refugee resettlement agency qualify as having a bona fide relationship with a U.S. entity, but that aspect of the district court’s ruling has been stayed by the Supreme Court.

In addition to the exemptions, EO2 provides a consular officer or CBP official with the authority to grant discretionary waivers of the ban on a case-by-case basis. It lists various circumstances under which waivers might be appropriate, including:

  • One previously admitted to the United States for work, study, or other long-term activity, who seeks to enter the United States to resume that activity and whose activities would be impaired by denial of entry during the suspension period;
  • One who seeks to enter the United States “for significant business or professional obligations” which would be impaired by denial of entry during the suspension period;
  • One who “seeks to enter the United States to visit or reside with a close family member (e.g., a spouse, child, or parent) who is a United States citizen, lawful permanent resident, or alien lawfully admitted on a valid nonimmigrant visa, and the denial of entry during the suspension period would cause undue hardship”;
  • The case of “an infant, a young child or adoptee, an individual needing urgent medical care, or someone whose entry is otherwise justified by the special circumstances of the case”;
  • One who has been employed by the United States government and “can document that he or she has provided faithful and valuable service to the United States Government”;
  • One traveling for purposes related to certain international organizations;
  • “a landed Canadian immigrant who applies for a visa at a location within Canada”; or
  • One “traveling as a United States Government-sponsored exchange visitor.”

Some of these categories of potential waivers may be rendered unnecessary by the modified injunction left in place by the Supreme Court, but others remain potentially relevant.

What is an Executive Order? Can it be challenged?

Does the EO change the law or regulations?

While the president may have the authority to issue such orders if the administration deems the action to be in the public interest, EO1 and EO2 did not change, replace, or repeal existing statutes (laws) or regulations.

A number of legal challenges have been made to EO1 and EO2. Many believe that wide sweeping bans such as the travel ban effectively discriminate against individuals on a religious basis, as all the countries affected are predominantly Muslim. Others have maintained that the travel ban and change in refugee admissions rules are beyond the President’s statutory authority.

On Saturday, January 28, 2017, U.S. federal judge Ann Donnelly of the U.S. District Court for the Eastern District of New York in Brooklyn issued an emergency stay [http://i2.cdn.turner.com/cnn/2017/images/01/28/darweesh.v.trump_decision.and.order.document-3.pdf] that temporarily blocked the government from sending people out of the country under EO1 after they had landed at a U.S. airport with valid visas or green cards. On Friday, February 3, 2017, Judge James Robart of the U.S. District Court for the Western District of Washington issued a Temporary Restraining Order (TRO) [http://cdn.ca9.uscourts.gov/datastore/general/2017/02/03/17-141_TRO_order.pdf] that blocked the government from enforcing the travel ban at all. Several other federal courts also issued stays or TROs. In light of the Western District of Washington TRO, which applied nationwide, DHS announced on February 4 that it had “suspended any and all actions implementing the affected sections of the Executive Order” [https://www.dhs.gov/news/2017/02/04/dhs-statement-compliance-recent-court-order].

The federal government appealed to the Court of Appeals for the Ninth Circuit and asked the Court of Appeals for an emergency stay of the Western District of Washington TRO, but on February 5, the Court of Appeals denied the request for an immediate administrative stay pending review of the emergency motion for stay [http://cdn.ca9.uscourts.gov/datastore/general/2017/02/05/17-35105.pdf ], and on February 9, the Court of Appeals issued a published Order denying the motion for stay pending appeal [http://cdn.ca9.uscourts.gov/datastore/opinions/2017/02/09/17-35105.pdf]. Rather than pursuing the appeal regarding EO1, the Administration in March promulgated EO2 in place of EO1 and withdrew the appeal regarding EO1.

EO2 was also challenged in the courts before it could take effect. A TRO against most of its provisions [http://cdn.ca9.uscourts.gov/datastore/general/2017/03/30/17-15589%203-15%20DC%20order.pdf ], and then a preliminary injunction against the same provisions [http://cdn.ca9.uscourts.gov/datastore/general/2017/03/30/17-15589%203-29%20DC%20order.pdf], were issued by Judge Derrick K. Watson of the U.S. District Court for the District of Hawaii in the case of Hawaii v. Trump, and that injunction was upheld almost in its entirety by the Court of Appeals for the Ninth Circuit [http://cdn.ca9.uscourts.gov/datastore/uploads/general/cases_of_interest/17-15589%20per%20curiam%20opinion.pdf], although the Court of Appeals narrowed the Hawaii injunction so as to allow the government to conduct the internal reviews provided for by EO2. The travel ban in section 2(c) of EO2 was also enjoined by Judge Theodore D. Chuang of the U.S. District Court for the District of Maryland in the case of IRAP v. Trump [http://www.mdd.uscourts.gov/sites/mdd/files/TDC-17-0361-Opinion-03162017.pdf], and that injunction was upheld by the en banc Court of Appeals for the Fourth Circuit [http://coop.ca4.uscourts.gov/171351.P.pdf].

The government sought review of the Hawaii and Maryland injunctions against EO2 in the U.S. Supreme Court. On June 26, 2017, the Supreme Court issued a decision [https://www.supremecourt.gov/opinions/16pdf/16-1436_l6hc.pdf] which granted the government’s petitions for writs of certiorari to review the injunctions and, pending that review, partially stayed the injunctions, narrowing them so that they only applied to those having a bona fide relationship with a person or entity in the United States, as discussed above.

After a challenge to the government’s interpretation of the term “bona fide relationship”, Judge Watson of the U.S. District Court for the District of Hawaii issued an order on July 13, 2017 [https://assets.documentcloud.org/documents/3894504/52205e39-ab70-4b42-b855-27bc89b9e068.pdf] which enjoined the government from “Applying section 2(c), 6(a) and 6(b) of [EO2] to exclude grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States.” The order also enjoined the government from “Applying Section 6(a) and 6(b) of [E02] to exclude refugees who: (i) have a formal assurance from an agency within the United States that the agency will provide, or ensure the provision of, reception and placement services to that refugee; or (ii) are in the U.S. Refugee Admissions Program through the Lautenberg Program.” Judge Watson rejected, however, the request to apply a similar blanket exemption to refugees in USRAP through the Iraqi Direct Access Program for U.S.-Affiliated Iraqis or the Central American Minors Program as for the Lautenberg Program, finding that not all refugees in those other two programs would necessarily have the requisite bona fide relationship with a close relative in the U.S. or a U.S. entity.

The government sought review of the July 13 order of the U.S. District Court for the District of Hawaii to the Supreme Court. On July 19, 2017, the Supreme Court issued an order [https://www.supremecourt.gov/orders/courtorders/071917zr_o7jp.pdf] which denied the government’s motion seeking clarification, thus leaving the July 13 order of the Hawaii district court in place in most respects, but stayed the “District Court order modifying the preliminary injunction with respect to refugees covered by a formal assurance . . . pending resolution of the Government’s appeal to the Court of Appeals for the Ninth Circuit.” Thus, the expanded list of family members covered by the July 13 Hawaii order remains in place, as does the blanket exemption for refugees in the Lautenberg Program, but the broader exemption regarding refugees covered by a formal assurance is not currently in effect.

The 90-Day Travel Ban

What exactly does the 90-day ban prohibit?

The ban halts visa issuance and entry to the United States for affected individuals.

When the ban is effective, the U.S. Department of State’s (DOS) consulates around the world are not permitted to issue visas to individuals who are nationals of a designated country and otherwise fall within the scope of the ban. Consulates will deny pending visa applications of any individuals who fall within the scope of the EO—both nonimmigrant (temporary) visas, and immigrant visas for those seeking to become U.S. permanent residents.

When EO1 was in effect, DOS had initially indicated that all visas already issued to those within the scope of EO1 were provisionally revoked. The number of revoked visas is subject to significant uncertainty, although it is clear that it is large: a lawyer for the Department of Justice advised a judge hearing one of the above-referenced cases that more than 100,000 visas had been revoked, but DOS then said the number was fewer than 60,000. [https://www.nytimes.com/2017/02/03/us/visa-ban-legal-challenge.html]. Following the TRO against EO1, however, DOS indicated that it had lifted the provisional revocation, and that the visas were now valid again if they had not been physically cancelled. [https://travel.state.gov/content/travel/en/news/important-announcement.html ]. (In instances where visas were physically cancelled, individuals would require either a new visa, or a waiver from U.S. Customs and Border Protection (CBP) at the port of entry.)

At times when the relevant sections of EO1 were not subject to a TRO, stay, or injunction with respect to particular individuals, CBP officers at border crossings, U.S. airports, and pre-flight inspection at certain foreign airports were not permitted to admit such individuals who are nationals of designated countries or allow them to enter the United States, even if they have a facially valid visa. The same will now apply to EO2.

Who is affected by the 90-day ban?

This ban applies to nationals of the six (6) designated countries: Iran, Libya, Somalia, Sudan, Syria, and Yemen. (EO1 had also included a seventh country, Iraq, but EO2 removed Iraq from the list.) It does not apply to those subject to the various EO2 exceptions listed above. Under the Supreme Court’s modification of the injunctions issued by the Hawaii and Maryland courts, it also does not apply to those who have a credible claim of a bona fide relationship with a person or entity in the United States.

What does it mean to be a “national”?

A national is a citizen of a particular country, someone entitled to hold the country’s passport. This encompasses someone born in the country or who is a citizen of the country. This may include individuals who were not born in the country but whose parents were, if such parentage entitles them to citizenship in that country. For example, someone born in Germany but whose parents were born in Iran may be considered an Iranian under Iranian law, and therefore may be considered subject to the ban.

Does the ban include “dual” nationals? What if the individual was born in one of the seven countries but is now a citizen of another country (e.g., Canada) and only holds that passport?

According to section 3(b)(iv) of EO2, the ban does not include “any dual national of a country designated under section 2 of this order when the individual is traveling on a passport issued by a non-designated country.” The situation under EO1 was less clear.

Does the ban include permanent residents (“green card” holders)?

Section 3(b)(1) of EO2 specifically exempts LPRs from the ban. EO1 as originally written did seem to ban the entry of affected lawful permanent residents (LPRs), and was applied to at least some LPRs in practice. However, an “authoritative guidance” memorandum subsequently issued by Counsel to the President Donald F. McGahn on February 1, 2017, “clarif[ied]” that EO1 did not ban entry by LPRs.

Does the ban apply to someone who has just traveled to a designated country?

No. Unless the individual is a national of a designated country, the ban does not apply solely because he or she has visited one or more of the six countries. Travel to one of the six countries, however, may increase the likelihood of being questioned by CBP about the nature of the visit—why the person was in the country, for how long, etc., as already provided for in the December 2015 Visa Waiver Program Improvement and Terrorist Travel Prevention Act. Such individuals may be placed in secondary inspection on arrival at a U.S. airport so that CBP may question them about the purpose and nature of such travel.

How are the U.S. consulates implementing the ban as it applies to visas?

Many visa categories, by their nature, require a relationship with a U.S. family member or U.S. entity such as an employer or school, such that the exemption from EO2 created by the Supreme Court’s modification of the Hawaii and Maryland injunctions will necessarily apply to anyone otherwise eligible for a visa in such categories. In its June 28, 2017 cable, the DOS advised consular officers that “If you determine an applicant has established eligibility for a nonimmigrant visa in a classification other than a B, C-1, D, I, or K visa, then the applicant is exempt from the E.O., as their bona fide relationship to a person or entity is inherent in the visa classification.   Eligible derivatives of these classifications are also exempt.  Likewise, if you determine an applicant has established eligibility for an immigrant visa in the following classifications — immediate relatives, family-based, and employment-based (other than certain self-petitioning employment-based first preference applicants with no job offer in the United States and SIV applicants under INA 101a(27)) — then the applicant and any eligible derivatives are exempt from the E.O.”

The reference to K visas is outdated, since it was a result of fiancés not being included as close relatives in the initial DOS guidance, as they were shortly thereafter. Thus, following the addition of K visas to the exempt list, the only nonimmigrant visa categories not automatically exempt from E02 under the Supreme Court’s modification of the injunctions are B visas issued to visitors for business or pleasure, C-1 visas issued to persons in transit through the United States, D visas issued to crewmen, and I visas issued to certain representatives of foreign press, radio, film, or other information media. With respect to I visa applicants, the cable explicitly recognizes that many, although not all, of them may be exempt as well due to a bona fide relationship with a U.S. entity, stating that “an eligible I visa applicant employed by foreign media that has a news office based in the United States would be covered by this exemption.” Thus, the only I visa applicants subject to the ban will be those whose foreign media employer has no news office based in the United States (and who also lack any other qualifying bona fide relationship with a U.S. entity or family member).

With respect to immigrant visas, the only categories not recognized as entirely exempt from EO2 are certain self-petitioning applicants having extraordinary ability in their field, diversity lottery winners, and certain special immigrant visa applicants, a variety of miscellaneous categories set out in INA 101(a)(27). Some such visa applicants will indeed have a bona fide relationship with a U.S. close relative or entity, but DOS has determined that not all necessarily will.  Indeed, with respect to diversity lottery winners, DOS has stated in its June 28, 2017 cable that “Based on the Department’s experience with the DV program, we anticipate that very few DV applicants are likely to be exempt from the E.O.’s suspension of entry or to qualify for a waiver.”  This statement, however, was made prior to the July 13, 2017 order of the U.S. District Court for the District of Hawaii rejecting the government’s earlier narrow interpretation of “close relative” and making clear that “grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States” are exempt from EO2 under the Supreme Court’s modification of the prior Hawaii and Maryland injunctions. There may be more DV applicants who fall under this broader interpretation of the “close relative” exemption than DOS had anticipated under its earlier narrower interpretation of that exemption.

For those visa categories that are potentially affected by E02, visa appointments continue to be scheduled, according to the State Department, because an interview is required in order to determine whether a visa applicant falls under one of the exceptions contained in EO2 or the exemptions created by the Supreme Court’s modification of the injunctions. This differs from what initially occurred while EO1 was in effect, when consulates were advised to stop scheduling and conducting interviews of affected individuals. They also would stop issuing (printing) visas for anyone who was already interviewed but who has not yet received the visa. Courier services were instructed to return the unadjudicated applications to the affected individuals. Consular posts posted alerts on their websites to advise individuals of the suspension of visa issuance “effective immediately and until further notification.” With regard to immigrant visas for those affected by the ban, the DOS had initially indicated that it would cancel currently scheduled interviews and would not schedule immigrant visa interviews for March or April. While the TRO and injunctions completely barring enforcement of the ban under EO1 were in effect, however, visa processing resumed, and the State Department announced [https://travel.state.gov/content/visas/en/news/executive-order-on-protecting-the-nation-from-terrorist-attacks-by-foreign-nationals.html] that “U.S. embassies and consulates will resume scheduling visa appointments” for nationals of the countries that had been affected by EO1.

Can an affected individual still board a plane and try to enter upon arrival at a U.S. airport?

There were reports of airlines refusing to board individuals who appeared to be affected by EO1’s ban. Before making any travel plans, individuals should consult with an immigration attorney for individual counsel and advice. It is relatively unlikely that anyone with a travel document appearing to be valid on its face, which would allow them to board a plane for an international flight, will be affected by EO2, but the details of an individual’s situation must be considered in order to determine whether that individual faces rarer circumstances in which this might occur.

Should affected individuals travel outside the United States?

Individuals who are affected by this ban must understand that if they depart the United States during the 90-day period, and if the ban is in effect when they attempt to return, they will most likely not be able to return. We caution potentially affected individuals who are in the United States, and who believe they qualify as having a bona fide relationship with a person or entity in the United States or qualify for another exception to EO2, to consult with an immigration attorney before making a decision to travel abroad.

What about individuals who are outside the United States and want to return?

While the ban is in effect, U.S. consular posts may refuse to issue visas to anyone who appears to be affected by the ban, and airlines may refuse to board anyone who appears to be affected by the ban. Those who are able to board a plane may be refused admission (entry) to the United States on arrival at a U.S. airport. Anyone affected by the ban who is outside the United States at a time when the ban is in effect should consult with an immigration attorney before attempting to return in order to understand the current state of affairs and the risks involved, and to develop a strategy based upon his or her individual circumstances.

What will happen to those who are refused entry by CBP?

Individuals who are refused admission by CBP will be instructed to make arrangements to return on the next outbound flight to the destination from which they arrived. While waiting to return abroad or for a decision on a waiver that would allow their entry (see below regarding exceptions to the ban), they will be held or detained by CBP. They will not necessarily be able to make phone calls or send emails or text messages. CBP’s view is that there is no right to an attorney for individuals who arrive at U.S. airports or land ports-of-entry and seek admission to the United States. In practice, many CBP officers will agree to speak with lawyers representing such individuals. Wherever possible, advance planning will be critical.

Are there any exceptions to the ban?

EO2 as written contains a number of exceptions for persons already having various sorts of lawful status or documentation, as discussed above. The injunctions modified by the Supreme Court further exempt from the application of EO2 anyone having a bona fide relationship with a person or institution in the United States.

EO2 also permits DOS and DHS to issue visas, or other immigration benefits, to affected individuals on a “case-by-case” basis, as discussed above, when an applicant establishes that “a.) Denying entry during the 90-day suspension would cause undue hardship; b.) His or her entry would not pose a threat to national security; and c.) His or her entry would be in the national interest.” The June 28th DOS cable indicates that such waivers may be granted to a “high-level government official traveling on official business who is not eligible for the diplomatic visa normally accorded to foreign officials of national governments (A or G visa)” such as “governors and other appropriate members of sub-national (state/local/regional) governments; and members of sub-national and regional security forces.” Such waivers may also be granted in other cases where the three criteria listed at (a.)-(c.) above are met and “the Chief of Mission or Assistant Secretary of a Bureau supports the waiver.” At this time, it is not clear how requests for such waivers will be adjudicated. Anyone seeking to make such a request during a time when the travel ban is in effect is advised to consult with an immigration attorney in order to prepare a strategy and supporting documentation.

Can CBP detain individuals?

Individuals who are refused admission and who agree to return on an outbound flight will be detained or held by CBP until they can depart.

At this time, we do not know how CBP will be dealing with those who seek to challenge the refusal of admission. When EO1 was first implemented, there were credible reports that CBP was detaining LPRs notwithstanding the court cases and Secretary Kelly’s statement of January 29, 2017 [https://www.dhs.gov/news/2017/01/29/statement-secretary-john-kelly-entry-lawful-permanent-residents-united-states]. It is also possible that CBP may agree to defer the inspection of individuals who seek to challenge the refusal of admission, which means that CBP will give them an appointment to return to CBP at a later date to review their case. At this time, it is not known how CBP will be handling such situations; different CBP officers and airports may take different actions.

Any affected individual thinking of traveling to the United States should consult with an immigration attorney about his or her individual circumstances. EO2, like EO1, does not change the existing immigration law, including the right to apply for asylum.

How will EO2 affect applications pending before U.S. Citizenship and Immigration Services (USCIS)?

According to credible reports, including conversations with USCIS officers at local USCIS Field Offices, when EO1 was first implemented, DHS leadership initially received email instructions over the weekend to suspend the adjudication of immigration applications by affected individuals from any of the seven designated countries. However, on February 2, 2017, Acting USCIS Director Lori Scialabba issued a memorandum indicating that the entry bar would not affect adjudication of benefits for persons in the United States, adjudication of benefits for LPRs, or adjudication of visa petitions for persons outside the United States (since those petitions do not directly confer travel authorization). The same should apply to EO2: the entry ban will not affect most applications pending before USCIS, although refugee adjudications will be affected, and adjudication of I-730 refugee/asylee relative petitions for beneficiaries outside the United States may still be subject to further guidance.

What does EO2 mean for the immigration status of someone who is in the United States?

EO2, like EO1, only directly affects those who are applying for visas (nonimmigrant and immigrant) or seeking entry. It is theoretically possible that revocation of nonimmigrant visas could lead to holders of those visas who were in the United States being subjected to removal proceedings under section 237(a)(1)(B) of the Immigration and Nationality Act, but this charge of deportability could then be contested in those removal proceedings, as explained in a blog post by Cyrus D. Mehta [http://blog.cyrusmehta.com/2017/02/resisting-president-trumps-visa-revocations.html]. During the period when the EO1 travel ban was in effect, before the TRO was entered, it does not appear that such removal proceedings were instituted.

Might the ban be longer than 90 days?

EO2 states that the ban on visa issuance and entry is in place for 90 days. The ban, however, will not be lifted automatically at the end of the 90 days. Instead, DHS is required to report to the President within 20 days what additional information may be needed from particular countries for adjudications of a visa, admission or other benefit under the INA in order to determine that the individual seeking the benefit “is not a security or public-safety threat.” Each country will then be requested to provide such information, and will have 50 days to do so. After that 50-day period, “the Secretary of Homeland Security, in consultation with the Secretary of State and the Attorney General, shall submit to the President a list of countries recommended for inclusion in a Presidential proclamation that would prohibit the entry of appropriate categories of foreign nationals of countries that have not provided the information requested until they do so or until the Secretary of Homeland Security certifies that the country has an adequate plan to do so, or has adequately shared information through other means.”

Will the ban be extended to include other countries?

EO2’s call for a DHS report based, in part, on information provided by other countries that the U.S. government says it needs to properly review and vet individuals appears to allow for DHS to recommend including additional countries in the ban, until they provide the U.S. government with information DHS is requesting of them. This certainly leaves open the possibility and even likelihood of additional countries being included in the ban, should the other countries either not cooperate or not provide information deemed to be adequate by the U.S. government.

Suspension of the U.S. Refugee Admissions Program (USRAP)

Who is affected by the suspension of USRAP?

All refugees being processed abroad and seeking admission to the United States would be affected. However, the suspension of USRAP, like the entry ban, has been enjoined as it relates to any refugees with a bona fide relationship with persons or entities in the United States. Pursuant to the Hawaii District Court’s order of July 13, 2017, this includes all refugees classified under the Lautenberg Program. However, other refugees who have a formal assurance from a refugee resettlement agency, but cannot meet the bona fide relationship requirement in any other way, are at the moment covered by the suspension of USRAP, given the Supreme Court’s July 19 stay of the portion of the Hawaii District Court’s order that would otherwise have exempted them.

How long is the suspension of USRAP?

To the extent that it is not preserved by the injunctions as modified by the Supreme Court and clarified by the portion of the Hawaii District Court’s order which the Supreme Court has allowed to remain in effect, the USRAP would be suspended for 120 days, subject to case-by-case waivers in which “the Secretary of State and the Secretary of Homeland Security may jointly determine to admit individuals to the United States as refugees on a case-by-case basis, in their discretion, but only so long as they determine that the entry of such individuals as refugees is in the national interest and does not pose a threat to the security or welfare of the United States.” During this time, the DOS and DHS are required to review the application and adjudication process to determine what additional procedures to take to ensure that refugees “do not pose a threat to the security and welfare of the United States” and to implement those procedures. After the 120 days, DOS can resume refugee admissions only for nationals of countries that are found to have sufficient safeguards to ensure the security and welfare of the United States.

How many refugees will be let into the United States?

Both EO1 and EO2 stated that DOS and DHS may admit only 50,000 refugees for fiscal year 2017 (after the suspension is lifted). This represents a more than 50% reduction in the number of refugee admissions, and the purported 50,000 ceiling for the fiscal year has now already been reached. However, the Supreme Court clarified in its decision that refugees having a bona fide relationship with a person or entity in the United States are exempt from this numerical limit under the modified injunction, just as they are exempt from the overall suspension of USRAP. Following the July 13, 2017 order of the U.S. District Court for the District of Hawaii, this exemption includes all refugees classified under the Lautenberg Program. The aspect of the Hawaii order that would cause the exemption to include all refugees who have a formal assurance from a refugee resettlement agency, however, has been stayed by the Supreme Court.

Elimination of Mailed-In Visa Applications or the “Drop-Box” Application

EO2, like EO1, eliminates the ability of some individuals who need visas to apply for their visas at a U.S. consulate without an in-person interview. Previously, some individuals—due to age, or the fact that they were repeat applicants—could mail in their passports to the U.S. consulate or use a “drop-box” system when applying for a visa. This visa interview waiver program has been suspended. Now, anyone who needs a U.S. visa will be required to make an appointment at a U.S. consulate and appear in person for the visa interview.

The impact of this change may be significant, imposing increased burdens on consular staff, longer wait times to schedule visa appointments, and longer waits for individuals to receive their passports and visas back from the consulate. U.S. employers who await the arrival or return of employees may also be negatively affected given these anticipated slowdowns in the process to obtain U.S. visas.

Does the Executive Order change the Visa Waiver Program or ESTA?

No. The “visa interview waiver program” is different from the Visa Waiver Program (VWP), which allows citizens of 38 named countries to travel to the United States. The VWP is still in effect. Citizens of most Western European countries, and others (e.g., Australia, New Zealand, Japan, Singapore), may still seek admission to the United States on the basis of their passports and an ESTA clearance.

Mid-July 2017 Immigration Update

Headlines:

  1. State Dept. Issues Guidance on Trump ‘Travel Ban’; Hawaii Motion Denied; More Court Action – The Department of State recently released guidance on President Trump’s “travel ban.” The Department’s guidance was issued following the U.S. Supreme Court’s ruling partially granting the government’s request to stay lower court injunctions against the travel ban. A federal judge in Hawaii has challenged aspects of the travel ban, and the Trump administration asked the Supreme Court for clarification and an emergency stay.
  2. DHS Delays, Plans To Propose Rescinding International Entrepreneur Rule – As expected, DHS has delayed the effective date of the International Entrepreneur Rule to provide the agency with an opportunity to obtain comments from the public regarding a proposal to rescind the rule.
  3. I-94 Arrival/Departure Info Now Available Online for Air and Sea Travelers – Foreign visitors arriving to the United States via air or sea no longer must complete the paper Arrival/Departure Record.
  4. USCIS Issues Policy Guidance on H-1B Master’s Degree Cap Exemption Case – A recent decision clarifies that to qualify for an H-1B numerical cap exemption based on a master’s or higher degree, the conferring institution must have qualified as a “United States institution of higher education” at the time the beneficiary’s degree was earned.
  5. Ten States Demand End of DACA – Signers included officials from Alabama, Arkansas, Idaho, Kansas, Louisiana, Nebraska, South Carolina, Tennessee, Texas, and West Virginia.
  6. Firm In the News…

Details:

  1. State Dept. Issues Guidance on Trump ‘Travel Ban’; Hawaii Motion Denied; More Court Action

The Department of State recently released guidance on President Trump’s executive order 13780, “Protecting the Nation From Foreign Terrorist Entry Into the United States,” frequently referred to as the “travel ban.” The Department’s guidance was issued following the U.S. Supreme Court’s June 26, 2017, ruling partially granting the government’s request to stay lower court injunctions against the travel ban.

The guidance states that implementation of the executive order, in compliance with the Supreme Court’s decision, began June 29, 2017. The Department said it does not plan to cancel previously scheduled visa application appointments. For nationals of the six designated countries—Libya, Iran, Somalia, Sudan, Syria, and Yemen—a consular officer will make a determination in the course of the interview whether an applicant otherwise eligible for a visa is exempt from the executive order or, if not, is eligible for a waiver and may be issued a visa. Consular officers may issue visas to nationals of the six designated countries on a case-by-case basis, the guidance states, if they determine that issuance is in the national interest, the applicant poses no national security threat to the United States, and denial of the visa would cause undue hardship.

The guidance reiterates that the executive order provides specifically that no visas issued before its effective date will be revoked pursuant to the order, and that the order does not apply to nationals of affected countries who had valid visas on June 29, 2017. The guidance also notes:

The E.O. further instructs that any individual whose visa was marked revoked or cancelled solely as a result of the original E.O. issued on January 27, 2017 (E.O. 13769) will be entitled to a travel document permitting travel to the United States, so that the individual may seek entry. Any individual in this situation who seeks to travel to the United States should contact the closest U.S. embassy or consulate to request a travel document.

The guidance notes that the Supreme Court’s order specified that the travel ban may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States. The guidance states that applicants seeking B, C-1, C-3, D, or I visas “will need to make a credible claim to a consular officer at their visa interview that they have a bona fide close familial relationship with a person in the United States or of a bona fide, formal, documented relationship with an entity in the United States that was formed in the ordinary course, rather than for the purpose of evading the E.O., for the visa applicant to be exempt from the E.O. based on the Supreme Court order.” Alternatively, the Department noted, some applicants may qualify for an exemption, and others may qualify for a waiver. Qualified applicants in nonimmigrant visa categories not listed above “are considered exempt from the E.O., because a credible claim of a bona fide relationship with a person or entity in the United States is inherent in the requirements for the visa classification,” the guidance states.

Qualified applicants in the immediate-relative and family-based immigrant visa categories are also exempt from the executive order’s travel ban under the Supreme Court’s order, the guidance states, because having a credible claim of a bona fide close familial relationship is inherent in the requirements for the visa. Likewise, qualified employment-based immigrant visa applicants generally are exempt “because they have a credible claim of a bona fide, formal, documented relationship with an entity in the United States formed in the ordinary course.” Unlike other employment-based immigrant visa applicants, certain self-petitioning employment-based first preference applicants with no job offer in the United States and special immigrant visas under INA section 101(a)(27) may be subject to the travel ban unless they have a credible claim of a bona fide close familial relationship with a person in the United States or of a bona fide, formal, documented relationship with an entity in the United States that was formed in the ordinary course, rather than for the purpose of evading the executive order, the guidance states. Applicants not exempted based on the Supreme Court’s order still may qualify for an exemption or a waiver, the guidance says. Likewise, diversity visa applicants from the affected countries “will need a credible claim of a bona fide close familial relationship with a person in the United States or of a bona fide, formal, documented relationship with an entity in the United States that was formed in the ordinary course, to be exempted under the provisions of the E.O., or qualify for a waiver, before they can be issued a visa during the suspension,” because a relationship with a person or entity in the United States is not required for such visas.

The guidance notes that if a principal visa applicant qualifies for an exemption or a waiver under the executive order, a qualified derivative is also exempt. The order does not restrict the travel of dual nationals if they are traveling on the passport of an unrestricted country and, if needed, hold a valid U.S. visa, the notice states. This applies even if they hold dual nationality from one of the six restricted countries. Also, U.S. lawful permanent residents are not affected by the executive order.

Meanwhile, the U.S. Court of Appeals for the Ninth Circuit denied Hawaii’s appeal of a U.S. District Court decision denying an emergency motion filed by Hawaii’s Attorney General Douglas Chin asking the court to block portions of the travel ban and for clarification of “bona fide relationship” with respect to qualifying relationships under the travel ban.

However, on July 13, 2017, a federal judge in Hawaii ruled that the travel ban cannot apply to grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States. The Trump administration filed a motion with the Supreme Court on July 14, 2017, asking for clarification and a stay of the Hawaii order. “The Supreme Court has had to correct this lower court once, and we will now reluctantly return directly to the Supreme Court to again vindicate the rule of law and the Executive Branch’s duty to protect the nation,” Attorney General Jeff Sessions said.

The Department’s guidance, which includes frequently asked questions, is at https://travel.state.gov/content/travel/en/news/important-announcement.html. Executive order 13780 is at https://www.whitehouse.gov/the-press-office/2017/03/06/executive-order-protecting-nation-foreign-terrorist-entry-united-states. Hawaii’s emergency motion is at http://www.politico.com/f/?id=0000015c-f62c-d1e3-a97d-ff7cb9c30000.

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  1. DHS Delays, Plans To Propose Rescinding International Entrepreneur Rule

As expected, the Department of Homeland Security (DHS) has delayed the effective date of the International Entrepreneur Rule that was scheduled to take effect July 17, 2017. The Federal Register notice, published on July 11, 2017, states that this delay ” will provide DHS with an opportunity to obtain comments from the public regarding a proposal to rescind the rule pursuant to Executive Order (E.O.) 13767, ‘Border Security and Immigration Enforcement Improvements.’ ” DHS said it will issue a Notice of Proposed Rulemaking soliciting public comments on the proposal to rescind the IE Final Rule.

The new effective date for the final rule, with one exception, is March 14, 2018. In the final rule, DHS added the Department of State Consular Report of Birth Abroad (Form FS-240) to the regulatory text and to the “List C” listing of acceptable documents for Form I-9 verification purposes. As part of the final rule, DHS also revised the accompanying form instructions to reflect this change. As this provision is unrelated to entrepreneur parole under the final rule, this one provision will go into effect on July 17, 2017, as originally provided, the notice states.

The final rule amended DHS regulations to include criteria that would guide the implementation of the Secretary of Homeland Security’s discretionary case-by-case parole authority as applied to international entrepreneurs. Specifically, the notice states, it applied to international entrepreneurs who can demonstrate that their parole into the United States under § 212(d)(5) of the Immigration and Nationality Act (INA) would provide a significant public benefit to the United States. In accordance with the final rule’s criteria, such potential would be indicated by, among other things, the receipt of significant capital investment from U.S. investors with established records of successful investments, or obtaining significant awards or grants from certain federal, state, or local government entities. In addition to defining criteria for the favorable exercise of the Secretary’s discretionary parole authority, the final rule established a period of initial parole stay of up to 30 months (which may be extended by up to an additional 30 months) to facilitate the applicant’s ability to oversee and grow his or her start-up entity in the United States.

Comments may be submitted by August 10, 2017, by following the instructions in the notice at https://www.federalregister.gov/documents/2017/07/11/2017-14619/international-entrepreneur-rule-delay-of-effective-date. A letter from a group of investors and startup founders in support of the International Entrepreneur Rule is at http://nvca.org/wp-content/uploads/2017/06/Letter-to-President-Trump-on-IER-from-emerging-ecosystems.pdf. The original final rule is at https://www.gpo.gov/fdsys/pkg/FR-2017-01-17/pdf/2017-00481.pdf.

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  1. I-94 Arrival/Departure Info Now Available Online for Air and Sea Travelers

U.S. Customs and Border Protection (CBP) recently announced that foreign visitors arriving to the United States via air or sea no longer must complete the paper Form I-94 Arrival/Departure Record or Form I-94W Nonimmigrant Visa Waiver Arrival/Departure Record. Such travelers who need to prove their legal-visitor status to employers, schools and universities, or government agencies, can now access their CBP arrival/departure record information online. CBP said it is gathering travelers’ arrival/departure information automatically from their electronic travel records. Because advance information is transmitted only for air and sea travelers, CBP will still issue a paper I-94 at land border ports of entry.

If travelers need the information from their I-94 admission record to verify immigration status or employment authorization, the record number, and other admission information, CBP encourages them to obtain the I-94 number at https://i94.cbp.dhs.gov/I94/#/home.

Upon arrival, a CBP officer stamps the travel document of each arriving nonimmigrant traveler with the admission date, the class of admission, and the date until which the traveler is admitted. If a traveler would like a paper I-94, one can be requested during the inspection process. All requests will be accommodated in a secondary setting, CBP said.

Upon leaving the U.S., a traveler previously issued a paper I-94 should surrender it to the commercial carrier or to CBP upon departure. Otherwise, CBP will record the departure electronically via manifest information provided by the carrier or by CBP.

The notice is at https://www.cbp.gov/travel/international-visitors/i-94-instructions. A related fact sheet is at https://www.cbp.gov/sites/default/files/assets/documents/2016-Mar/i-94-automation-fact-sheet.pdf.

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  1. USCIS Issues Policy Guidance on H-1B Master’s Degree Cap Exemption Case

U.S. Citizenship and Immigration Services (USCIS) recently published a policy memorandum designating Matter of A-T- as an “Adopted Decision,” which establishes policy that applies to and binds all USCIS employees. “USCIS personnel are directed to follow the reasoning in this decision in similar cases,” the memo states. The decision clarifies that to qualify for an H-1B numerical cap exemption based on a master’s or higher degree, the conferring institution must have qualified as a “United States institution of higher education” at the time the beneficiary’s degree was earned.

In Matter of A-T- Inc., Adopted Decision 2017-04 (AAO May 23, 2017), the California Service Center director denied the H-1B petition, concluding that the beneficiary did not qualify for the claimed master’s cap exemption because the degree-conferring institution was not accredited when it awarded the beneficiary’s master’s degree. The petitioner asserted that a master’s degree does not need to be from a U.S. institution of higher education when the degree is awarded to qualify for the master’s cap exemption, but rather that a beneficiary may qualify for the exemption if he or she earned a degree from an entity that qualified as a U.S. institution of higher education at the time of adjudication. The Administrative Appeals Office (AAO) disagreed, noting that the degree must have been earned from an institution that has either been accredited or granted preaccreditation status. Among other things, the AAO noted that if a beneficiary could qualify for the master’s cap exemption based on accreditation or preaccreditation that happens long after the degree was earned, this would not necessarily reflect the quality of the beneficiary’s education. Conversely, the beneficiary subsequently could become ineligible for the exemption if the institution ended up not being accredited. Thus, the AAO noted, the petitioner’s proffered interpretation introduces uncertainty for graduates seeking immigration benefits over time. In contrast, the AAO said, under its interpretation, an individual who earns a degree from an accredited or preaccredited institution may continue to qualify for the master’s cap exemption even if the institution later closes or loses its accreditation status. Therefore, the AAO said it interprets the statute as requiring that the institution’s qualifications be established at the time the degree is earned, and the date the beneficiary earned his master’s degree is critical.

The USCIS policy memorandum is at https://www.uscis.gov/sites/default/files/files/nativedocuments/APPROVED_PM-602-0145_Matter_of_A-T-_Inc_Adopted_Decision.pdf.

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  1. Ten States Demand End of DACA

Republican officials from 10 states, led by Texas Attorney General Ken Paxton, sent a letter to the Department of Justice threatening further legal action if the Deferred Action for Childhood Arrivals (DACA) program is not ended. That program, instituted by President Obama in 2012, allows undocumented immigrants, called “DREAMers,” who grew up in the United States to stay in the country and obtain work authorization. Signers included officials from Alabama, Arkansas, Idaho, Kansas, Louisiana, Nebraska, South Carolina, Tennessee, Texas, and West Virginia.

The letter states that the original 2012 DACA memorandum is “unlawful” because DACA “unilaterally confers eligibility for work authorization…and lawful presence without any statutory authorization from Congress.” The letter, sent to Jeff Sessions, U.S. Attorney General, asks that DACA be phased out, that the 2012 memorandum be rescinded, and that DACA or Expanded DACA permits not be renewed or issued in the future. The letter asks the Trump administration to agree by September 5, 2017, to rescind the 2012 DACA memorandum and not to renew or issue any new such permits in the future, to avoid further legal action.

The states with the most DACA applicants are California, which reportedly has received an estimated 387,000 DACA applications or renewals and approved 359,000 as of August 2016, and Texas, which has received more than 220,000 such applications and approved nearly 200,000 in the same time frame.

Reaction from DACA advocates was swift and intense. Thomas A. Saenz, president and general counsel of the Mexican American Legal Defense and Educational Fund (MALDEF), said his organization “condemns in the strongest terms each of the state officials who joined in threatening the federal administration to repeal DACA.” Accusing the state signatories of “xenophobia” and “mean-spirited stupidity,” he said MALDEF “urges the president not to cave in to the toothless threat in [the] Texas letter. Presidential authority does constitutionally extend to protecting DACA recipients, whom the president has repeatedly declared worthy of protection. We urge the president to fight to vindicate that authority.” He said MALDEF “takes encouragement from the fact that less than half of the plaintiff states in Texas v. United States joined today’s craven letter. For its part, MALDEF, on behalf of the Jane Doe intervenors whom we represent, will be moving to dismiss the case as moot and not appropriate for the threatened expansion.”

The letter is at http://www.aila.org/infonet/ten-states-sent-letter-to-doj-requesting-end-daca. MALDEF’s statement is at http://www.maldef.org/news/releases/2017_6_29_MALDEF_Statement_on_Texas_Letter_Demanding_Repeal_of_DACA/.

  1. Firm In The News

Cyrus D. Mehta published Analysis of the 60-Day Grace Period for Nonimmigrant Workers on July 10, 2017.

David Isaacson published Travel Ban FAQs – Updated 01/14/2017 on July 15, 2017.

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Travel Ban: FAQs – Updated 07/14/2017

These updated FAQs reflect the situation with regard to President Trump’s executive orders entitled “Protecting the Nation From Foreign Terrorist Entry Into the United States,” banning entry to the United States by certain individuals traveling from Syria, Iran, Sudan, Libya, Somalia, and Yemen, as of 5 pm Eastern Standard Time (EST) on July 14, 2017. New developments are expected to continue to rapidly change the situation.

What are the key points of these Executive Orders?

President Trump signed an Executive Order (EO1) the afternoon of Friday, January 27, 2017, available at https://www.whitehouse.gov/the-press-office/2017/01/27/executive-order-protecting-nation-foreign-terrorist-entry-united-states, which, according to its introduction, is intended to “protect Americans.”  After Judge James Robart of the U.S. District Court for the Western District of Washington, on February 3, 2017, issued a TRO [http://cdn.ca9.uscourts.gov/datastore/general/2017/02/03/17-141_TRO_order.pdf] that temporarily blocked the government from enforcing EO1, and the Court of Appeals for the Ninth Circuit on February 9 refused to stay the injunction pending appeal [http://cdn.ca9.uscourts.gov/datastore/opinions/2017/02/09/17-35105.pdf ], President Trump signed a second Executive Order (EO2) on March 6, 2017, available at https://www.whitehouse.gov/the-press-office/2017/03/06/executive-order-protecting-nation-foreign-terrorist-entry-united-states.

EO2 was to become effective as of March 16, 2017, and replaced EO1, though much of EO2 is currently not in effect due to injunctions discussed further below.  Certain portions of EO2 came into effect on the morning of June 29, 2017, approximately 72 hours after a Supreme Court decision discussed below that stayed a portion of the injunctions.  A Presidential Memorandum issued on June 14, 2017 [https://www.whitehouse.gov/the-press-office/2017/06/14/presidential-memorandum-secretary-state-attorney-general-secretary] had indicated that the provisions of EO2 would take effect 72 hours after the lifting of an injunction against them, to provide time for orderly implementation.

Among EO1’s key provisions were:

  • A 90-day ban on the issuance of U.S. visas to and entry to the United States of anyone who is a national of one of seven (7) “designated” countries—Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. Iraq was subsequently removed from the list when EO2 was issued.
  • An immediate review by the U.S. Department of Homeland Security (DHS) of the information needed from any country to adequately determine the identity of any individual seeking a visa, admission or other immigration benefit and that they are not “security or public-safety threat[s].” This report must be submitted within 30 days and must include a list of countries that do not provide adequate information.
  • The suspension of the U.S. Refugee Admissions Program (USRAP) for 120 days.
  • The implementation of “uniform screening standards for all immigration programs” including reinstituting “in person” interviews.
  • A requirement that all individuals who need visas apply for them in person at U.S. consulates, rather than allowing “mail-in” or drop-box applications.

EO2 added a number of exemptions and discretionary waivers that limited the effect of EO1 in an effort to address some of the concerns raised by Judge Robart in his TRO and by the Court of Appeals for the Ninth Circuit.  According to EO2, the 90-day ban on issuance of visas and entry into the United States for nationals of the six designated countries would only apply to those who

  • Were outside the United States on the effective date of EO2;
  • Did not have a valid visa at 5 p.m., Eastern Standard Time on January 27, 2017 (when EO1 was first promulgated); and
  • Did not have a valid visa on the effective date of EO2.

EO2 further exempted several classes of persons from its entry ban:

  • Any lawful permanent resident of the United States (LPR);
  • Anyone admitted to or paroled into the United States after the effective date of EO2;
  • Anyone with a document other than a visa permitting travel to the United States, such as an advance parole document, valid on the effective date of EO2 or afterwards;
  • Any dual national traveling on a passport from a non-designated country;
  • Anyone traveling on a diplomatic or diplomatic-type visa, NATO visa, C-2 visa for travel to the UN, or G-1, G-2, G-3 or G-4 visa;
  • Anyone granted asylum, admitted as a refugee, or granted withholding of removal, advance parole, or protection under the Convention Against Torture.

The references to the effective date of EO2 have been complicated by subsequent developments, especially the June 14, 2017 presidential memorandum [https://www.whitehouse.gov/the-press-office/2017/06/14/presidential-memorandum-secretary-state-attorney-general-secretary], so anyone potentially affected by exemptions linked to the effective date should consult an immigration attorney.

The Supreme Court has temporarily left in place part of two injunctions against EO2, as described in more detail below, so as to create an additional exemption.  Under the modified injunctions, the travel ban and refugee ban of EO2 do not apply to “foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.”  In its decision issued on June 26, 2017 [https://www.supremecourt.gov/opinions/16pdf/16-1436_l6hc.pdf], the Supreme Court elaborated further on the requirements of such a bona fide relationship:

  • For a bona fide relationship with an individual person to qualify under the modified injunction, “a close familial relationship is required. A foreign national who wishes to enter the United States to live with or visit a family member, like [one plaintiff’s] wife or [another plaintiff’s] mother-in-law, clearly has such a relationship.”
  • For a bona fide relationship with an entity, “the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading EO-2.” According to the Supreme Court, this could include:
    • Students admitted to a U.S. university;
    • “a worker who has accepted an offer of employment from an American company”; or
    • “a lecturer invited to address an American audience”.

The list is not necessarily an exclusive one, but the concept of a bona fide relationship will not stretch so far as to cover, for example, a nonprofit which adds affected immigrants to its client list for the purpose of claiming harm from their exclusion.

In a cable issued the evening of June 28, 2017 and obtained by Reuters [http://live.reuters.com/Event/Live_US_Politics/989297085], the Department of State at first interpreted the “close family” aspect of this Supreme-Court-created exemption to extend only to “a parent (including parent-in-law), spouse, child, adult son or daughter, son-in-law, daughter-in-law, sibling, whether whole or half” and “includ[ing] step relationships.”  The DOS cable stated that  ““Close family” does not include grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-laws and sisters-in-law, fiancés, and any other “extended” family members.”  Fiancés were subsequently added by later DOS guidance to the DOS definition of “close family”, but DOS continued to take the position that grandparents, grandchildren, and the other listed sorts of relatives were not included.  As discussed in more detail below, however, the U.S. District Court for the District of Hawaii has recently ordered, and DOS has acknowledged [https://travel.state.gov/content/travel/en/news/important-announcement.html], that “grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts and uncles, ‎nephews and nieces, and cousins also be included in the definition of “close familial relationship.”  The same district court order indicates that refugees for whom a formal sponsorship undertaking has been given by a U.S. refugee resettlement agency qualify as having a bona fide relationship with a U.S. entity.

In addition to the exemptions, EO2 provides a consular officer or CBP official with the authority to grant discretionary waivers of the ban on a case-by-case basis.  It lists various circumstances under which waivers might be appropriate, including:

  • One previously admitted to the United States for work, study, or other long-term activity, who seeks to enter the United States to resume that activity and whose activities would be impaired by denial of entry during the suspension period;
  • One who seeks to enter the United States “for significant business or professional obligations” which would be impaired by denial of entry during the suspension period;
  • One who “seeks to enter the United States to visit or reside with a close family member (e.g., a spouse, child, or parent) who is a United States citizen, lawful permanent resident, or alien lawfully admitted on a valid nonimmigrant visa, and the denial of entry during the suspension period would cause undue hardship”;
  • The case of “an infant, a young child or adoptee, an individual needing urgent medical care, or someone whose entry is otherwise justified by the special circumstances of the case”;
  • One who has been employed by the United States government and “can document that he or she has provided faithful and valuable service to the United States Government”;
  • One traveling for purposes related to certain international organizations;
  • “a landed Canadian immigrant who applies for a visa at a location within Canada”; or
  • One “traveling as a United States Government-sponsored exchange visitor.”

Some of these categories of potential waivers may be rendered unnecessary by the modified injunction left in place by the Supreme Court, but others remain potentially relevant.

What is an Executive Order? Can it be challenged?

Does the EO change the law or regulations?

While the president may have the authority to issue such orders if the administration deems the action to be in the public interest, EO1 and EO2 did not change, replace, or repeal existing statutes (laws) or regulations.

A number of legal challenges have been made to EO1 and EO2. Many believe that wide sweeping bans such as the travel ban effectively discriminate against individuals on a religious basis, as all the countries affected are predominantly Muslim.  Others have maintained that the travel ban and change in refugee admissions rules are beyond the President’s statutory authority.

On Saturday, January 28, 2017, U.S. federal judge Ann Donnelly of the U.S. District Court for the Eastern District of New York in Brooklyn issued an emergency stay [http://i2.cdn.turner.com/cnn/2017/images/01/28/darweesh.v.trump_decision.and.order.document-3.pdf] that temporarily blocked the government from sending people out of the country under EO1 after they had landed at a U.S. airport with valid visas or green cards. On Friday, February 3, 2017, Judge James Robart of the U.S. District Court for the Western District of Washington issued a Temporary Restraining Order (TRO) [http://cdn.ca9.uscourts.gov/datastore/general/2017/02/03/17-141_TRO_order.pdf] that blocked the government from enforcing the travel ban at all.  Several other federal courts also issued stays or TROs. In light of the Western District of Washington TRO, which applied nationwide, DHS announced on February 4 that it had “suspended any and all actions implementing the affected sections of the Executive Order” [https://www.dhs.gov/news/2017/02/04/dhs-statement-compliance-recent-court-order].

The federal government appealed to the Court of Appeals for the Ninth Circuit and asked the Court of Appeals for an emergency stay of the Western District of Washington TRO, but on February 5, the Court of Appeals denied the request for an immediate administrative stay pending review of the emergency motion for stay [http://cdn.ca9.uscourts.gov/datastore/general/2017/02/05/17-35105.pdf ], and on February 9, the Court of Appeals issued a published Order denying the motion for stay pending appeal [http://cdn.ca9.uscourts.gov/datastore/opinions/2017/02/09/17-35105.pdf].  Rather than pursuing the appeal regarding EO1, the Administration in March promulgated EO2 in place of EO1 and withdrew the appeal regarding EO1.

EO2 was also challenged in the courts before it could take effect.  A TRO against most of its provisions [http://cdn.ca9.uscourts.gov/datastore/general/2017/03/30/17-15589%203-15%20DC%20order.pdf ], and then a preliminary injunction against the same provisions [http://cdn.ca9.uscourts.gov/datastore/general/2017/03/30/17-15589%203-29%20DC%20order.pdf], were issued by Judge Derrick K. Watson of the U.S. District Court for the District of Hawaii in the case of Hawaii v. Trump, and that injunction was upheld almost in its entirety by the Court of Appeals for the Ninth Circuit [http://cdn.ca9.uscourts.gov/datastore/uploads/general/cases_of_interest/17-15589%20per%20curiam%20opinion.pdf], although the Court of Appeals narrowed the Hawaii injunction so as to allow the government to conduct the internal reviews provided for by EO2.  The travel ban in section 2(c) of EO2 was also enjoined by Judge Theodore D. Chuang of the U.S. District Court for the District of Maryland in the case of IRAP v. Trump [http://www.mdd.uscourts.gov/sites/mdd/files/TDC-17-0361-Opinion-03162017.pdf], and that injunction was upheld by the en banc Court of Appeals for the Fourth Circuit [http://coop.ca4.uscourts.gov/171351.P.pdf].

The government sought review of the Hawaii and Maryland injunctions against EO2 in the U.S. Supreme Court. On June 26, 2017, the Supreme Court issued a decision [https://www.supremecourt.gov/opinions/16pdf/16-1436_l6hc.pdf] which granted the government’s petitions for writs of certiorari to review the injunctions and, pending that review, partially stayed the injunctions, narrowing them so that they only applied to those having a bona fide relationship with a person or entity in the United States, as discussed above.

After a challenge to the government’s interpretation of the term “bona fide relationship”, Judge Watson of the U.S. District Court for the District of Hawaii issued an order on July 13, 2017 [https://assets.documentcloud.org/documents/3894504/52205e39-ab70-4b42-b855-27bc89b9e068.pdf] which enjoined the government from “Applying section 2(c), 6(a) and 6(b) of [EO2] to exclude grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States.”  The order also enjoined the government from “Applying Section 6(a) and 6(b) of [E02] to exclude refugees who: (i) have a formal assurance from an agency within the United States that the agency will provide, or ensure the provision of, reception and placement services to that refugee; or (ii) are in the U.S. Refugee Admissions Program through the Lautenberg Program.”  Judge Watson rejected, however, the request to apply a similar blanket exemption to refugees in USRAP through the Iraqi Direct Access Program for U.S.-Affiliated Iraqis or the Central American Minors Program as for the Lautenberg Program, finding that not all refugees in those other two programs would necessarily have the requisite bona fide relationship with a close relative in the U.S. or a U.S. entity.

The government has indicated that it will seek to appeal the July 13 order of the U.S. District Court for the District of Hawaii to the Supreme Court.

The 90-Day Travel Ban

What exactly does the 90-day ban prohibit?

The ban halts visa issuance and entry to the United States for affected individuals.

When the ban is effective, the U.S. Department of State’s (DOS) consulates around the world are not permitted to issue visas to individuals who are nationals of a designated country and otherwise fall within the scope of the ban. Consulates will deny pending visa applications of any individuals who fall within the scope of the EO—both nonimmigrant (temporary) visas, and immigrant visas for those seeking to become U.S. permanent residents.

When EO1 was in effect, DOS had initially indicated that all visas already issued to those within the scope of EO1 were provisionally revoked. The number of revoked visas is subject to significant uncertainty, although it is clear that it is large: a lawyer for the Department of Justice advised a judge hearing one of the above-referenced cases that more than 100,000 visas had been revoked, but DOS then said the number was fewer than 60,000. [https://www.nytimes.com/2017/02/03/us/visa-ban-legal-challenge.html]. Following the TRO against EO1, however, DOS indicated that it had lifted the provisional revocation, and that the visas were now valid again if they had not been physically cancelled.  [https://travel.state.gov/content/travel/en/news/important-announcement.html ].  (In instances where visas were physically cancelled, individuals would require either a new visa, or a waiver from U.S. Customs and Border Protection (CBP) at the port of entry.)

At times when the relevant sections of EO1 were not subject to a TRO, stay, or injunction with respect to particular individuals, CBP officers at border crossings, U.S. airports, and pre-flight inspection at certain foreign airports were not permitted to admit such individuals who are nationals of designated countries or allow them to enter the United States, even if they have a facially valid visa.  The same will now apply to EO2.

Who is affected by the 90-day ban?

This ban applies to nationals of the six (6) designated countries: Iran, Libya, Somalia, Sudan, Syria, and Yemen. (EO1 had also included a seventh country, Iraq, but EO2 removed Iraq from the list.)  It does not apply to those subject to the various EO2 exceptions listed above.  Under the Supreme Court’s modification of the injunctions issued by the Hawaii and Maryland courts, it also does not apply to those who have a credible claim of a bona fide relationship with a person or entity in the United States.

What does it mean to be a “national”?

A national is a citizen of a particular country, someone entitled to hold the country’s passport. This encompasses someone born in the country or who is a citizen of the country. This may include individuals who were not born in the country but whose parents were, if such parentage entitles them to citizenship in that country. For example, someone born in Germany but whose parents were born in Iran may be considered an Iranian under Iranian law, and therefore may be considered subject to the ban.

Does the ban include “dual” nationals? What if the individual was born in one of the seven countries but is now a citizen of another country (e.g., Canada) and only holds that passport?

According to section 3(b)(iv) of EO2, the ban does not include “any dual national of a country designated under section 2 of this order when the individual is traveling on a passport issued by a non-designated country.”  The situation under EO1 was less clear.

Does the ban include permanent residents (“green card” holders)?

Section 3(b)(1) of EO2 specifically exempts LPRs from the ban.  EO1 as originally written did seem to ban the entry of affected lawful permanent residents (LPRs), and was applied to at least some LPRs in practice. However, an “authoritative guidance” memorandum subsequently issued by Counsel to the President Donald F. McGahn on February 1, 2017, “clarif[ied]” that EO1 did not ban entry by LPRs.

Does the ban apply to someone who has just traveled to a designated country?

No. Unless the individual is a national of a designated country, the ban does not apply solely because he or she has visited one or more of the six countries. Travel to one of the six countries, however, may increase the likelihood of being questioned by CBP about the nature of the visit—why the person was in the country, for how long, etc., as already provided for in the December 2015 Visa Waiver Program Improvement and Terrorist Travel Prevention Act. Such individuals may be placed in secondary inspection on arrival at a U.S. airport so that CBP may question them about the purpose and nature of such travel.

How are the U.S. consulates implementing the ban as it applies to visas?

Many visa categories, by their nature, require a relationship with a U.S. family member or U.S. entity such as an employer or school, such that the exemption from EO2 created by the Supreme Court’s modification of the Hawaii and Maryland injunctions will necessarily apply to anyone otherwise eligible for a visa in such categories.  In its June 28, 2017 cable, the DOS advised consular officers that “If you determine an applicant has established eligibility for a nonimmigrant visa in a classification other than a B, C-1, D, I, or K visa, then the applicant is exempt from the E.O., as their bona fide relationship to a person or entity is inherent in the visa classification.   Eligible derivatives of these classifications are also exempt.  Likewise, if you determine an applicant has established eligibility for an immigrant visa in the following classifications — immediate relatives, family-based, and employment-based (other than certain self-petitioning employment-based first preference applicants with no job offer in the United States and SIV applicants under INA 101a(27)) — then the applicant and any eligible derivatives are exempt from the E.O.”

The reference to K visas is outdated, since it was a result of fiancés not being included as close relatives in the initial DOS guidance, as they were shortly thereafter.  Thus, following the addition of K visas to the exempt list, the only nonimmigrant visa categories not automatically exempt from E02 under the Supreme Court’s modification of the injunctions are B visas issued to visitors for business or pleasure, C-1 visas issued to persons in transit through the United States, D visas issued to crewmen, and I visas issued to certain representatives of foreign press, radio, film, or other information media.  With respect to I visa applicants, the cable explicitly recognizes that many, although not all, of them may be exempt as well, stating that “an eligible I visa applicant employed by foreign media that has a news office based in the United States would be covered by this exemption.”  Thus, the only I visa applicants subject to the ban will be those whose foreign media employer has no news office based in the United States (and who also lack any other qualifying bona fide relationship with a U.S. entity or family member).

With respect to immigrant visas, the only categories not recognized as entirely exempt from EO2 are certain self-petitioning applicants having extraordinary ability in their field, diversity lottery winners, and certain special immigrant visa applicants, a variety of miscellaneous categories set out in INA 101(a)(27).  Some such visa applicants will indeed have a bona fide relationship with a U.S. close relative or entity, but DOS has determined that not all necessarily will.  Indeed, with respect to diversity lottery winners, DOS has stated in its June 28, 2017 cable that “Based on the Department’s experience with the DV program, we anticipate that very few DV applicants are likely to be exempt from the E.O.’s suspension of entry or to qualify for a waiver.”  This statement, however, was made prior to the July 13, 2017 order of the U.S. District Court for the District of Hawaii rejecting the government’s earlier narrow interpretation of “close relative” and making clear that “grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States” are exempt from EO2 under the Supreme Court’s modification of the prior Hawaii and Maryland injunctions.  There may be more DV applicants who fall under this broader interpretation of the exemption than DOS anticipated under its earlier narrower interpretation.

For those visa categories that are potentially affected by E02, visa appointments continue to be scheduled, according to the State Department, because an interview is required in order to determine whether a visa applicant falls under one of the exceptions contained in EO2 or the exemptions created by the Supreme Court’s modification of the injunctions.  This differs from what initially occurred while EO1 was in effect, when consulates were advised to stop scheduling and conducting interviews of affected individuals. They also would stop issuing (printing) visas for anyone who was already interviewed but who has not yet received the visa. Courier services were instructed to return the unadjudicated applications to the affected individuals. Consular posts posted alerts on their websites to advise individuals of the suspension of visa issuance “effective immediately and until further notification.” With regard to immigrant visas for those affected by the ban, the DOS had initially indicated that it would cancel currently scheduled interviews and would not schedule immigrant visa interviews for March or April.  While the TRO and injunctions completely barring enforcement of the ban under EO1 were in effect, however, visa processing resumed, and the State Department announced [https://travel.state.gov/content/visas/en/news/executive-order-on-protecting-the-nation-from-terrorist-attacks-by-foreign-nationals.html] that “U.S. embassies and consulates will resume scheduling visa appointments” for nationals of the countries that had been affected by EO1.

Can an affected individual still board a plane and try to enter upon arrival at a U.S. airport?

There were reports of airlines refusing to board individuals who appeared to be affected by EO1’s ban. Before making any travel plans, individuals should consult with an immigration attorney for individual counsel and advice.  It is relatively unlikely that anyone with a travel document appearing to be valid on its face, which would allow them to board a plane for an international flight, will be affected by EO2, but the details of an individual’s situation must be considered in order to determine whether that individual faces rarer circumstances in which this might occur.

Should affected individuals travel outside the United States?

Individuals who are affected by this ban must understand that if they depart the United States during the 90-day period, and if the ban is in effect when they attempt to return, they will most likely not be able to return. We caution potentially affected individuals who are in the United States, and who believe they qualify as having a bona fide relationship with a person or entity in the United States or qualify for another exception to EO2, to consult with an immigration attorney before making a decision to travel abroad.

What about individuals who are outside the United States and want to return?

While the ban is in effect, U.S. consular posts may refuse to issue visas to anyone who appears to be affected by the ban, and airlines may refuse to board anyone who appears to be affected by the ban. Those who are able to board a plane may be refused admission (entry) to the United States on arrival at a U.S. airport. Anyone affected by the ban who is outside the United States at a time when the ban is in effect should consult with an immigration attorney before attempting to return in order to understand the current state of affairs and the risks involved, and to develop a strategy based upon his or her individual circumstances.

What will happen to those who are refused entry by CBP?

Individuals who are refused admission by CBP will be instructed to make arrangements to return on the next outbound flight to the destination from which they arrived. While waiting to return abroad or for a decision on a waiver that would allow their entry (see below regarding exceptions to the ban), they will be held or detained by CBP. They will not necessarily be able to make phone calls or send emails or text messages. CBP’s view is that there is no right to an attorney for individuals who arrive at U.S. airports or land ports-of-entry and seek admission to the United States. In practice, many CBP officers will agree to speak with lawyers representing such individuals. Wherever possible, advance planning will be critical.

Are there any exceptions to the ban?

EO2 as written contains a number of exceptions for persons already having various sorts of lawful status or documentation, as discussed above.  The injunctions modified by the Supreme Court further exempt from the application of EO2 anyone having a bona fide relationship with a person or institution in the United States.

EO2 also permits DOS and DHS to issue visas, or other immigration benefits, to affected individuals on a “case-by-case” basis, as discussed above, when an applicant establishes that “a.) Denying entry during the 90-day suspension would cause undue hardship; b.) His or her entry would not pose a threat to national security; and c.) His or her entry would be in the national interest.”  The June 28th DOS cable indicates that such waivers may be granted to a “high-level government official traveling on official business who is not eligible for the diplomatic visa normally accorded to foreign officials of national governments (A or G visa)” such as “governors and other appropriate members of sub-national (state/local/regional) governments; and members of sub-national and regional security forces.” Such waivers may also be granted in other cases where the three criteria listed at (a.)-(c.) above are met and “the Chief of Mission or Assistant Secretary of a Bureau supports the waiver.”  At this time, it is not clear how requests for such waivers will be adjudicated. Anyone seeking to make such a request during a time when the travel ban is in effect is advised to consult with an immigration attorney in order to prepare a strategy and supporting documentation.

Can CBP detain individuals?

Individuals who are refused admission and who agree to return on an outbound flight will be detained or held by CBP until they can depart.

At this time, we do not know how CBP will be dealing with those who seek to challenge the refusal of admission. When EO1 was first implemented, there were credible reports that CBP was detaining LPRs notwithstanding the court cases and Secretary Kelly’s statement of January 29, 2017 [https://www.dhs.gov/news/2017/01/29/statement-secretary-john-kelly-entry-lawful-permanent-residents-united-states]. It is also possible that CBP may agree to defer the inspection of individuals who seek to challenge the refusal of admission, which means that CBP will give them an appointment to return to CBP at a later date to review their case. At this time, it is not known how CBP will be handling such situations; different CBP officers and airports may take different actions.

Any affected individual thinking of traveling to the United States should consult with an immigration attorney about his or her individual circumstances. EO2, like EO1, does not change the existing immigration law, including the right to apply for asylum.

How will EO2 affect applications pending before U.S. Citizenship and Immigration Services (USCIS)?

According to credible reports, including conversations with USCIS officers at local USCIS Field Offices, when EO1 was first implemented, DHS leadership initially received email instructions over the weekend to suspend the adjudication of immigration applications by affected individuals from any of the seven designated countries. However, on February 2, 2017, Acting USCIS Director Lori Scialabba issued a memorandum indicating that the entry bar would not affect adjudication of benefits for persons in the United States, adjudication of benefits for LPRs, or adjudication of visa petitions for persons outside the United States (since those petitions do not directly confer travel authorization). The same should apply to EO2: the entry ban will not affect most applications pending before USCIS, although refugee adjudications will be affected, and adjudication of I-730 refugee/asylee relative petitions for beneficiaries outside the United States may still be subject to further guidance.

What does EO2 mean for the immigration status of someone who is in the United States?

EO2, like EO1, only directly affects those who are applying for visas (nonimmigrant and immigrant) or seeking entry.  It is theoretically possible that revocation of nonimmigrant visas could lead to holders of those visas who were in the United States being subjected to removal proceedings under section 237(a)(1)(B) of the Immigration and Nationality Act, but this charge of deportability could then be contested in those removal proceedings, as explained in a blog post by Cyrus D. Mehta [http://blog.cyrusmehta.com/2017/02/resisting-president-trumps-visa-revocations.html].  During the period when the EO1 travel ban was in effect, before the TRO was entered, it does not appear that such removal proceedings were instituted.

Might the ban be longer than 90 days?

EO2 states that the ban on visa issuance and entry is in place for 90 days. The ban, however, will not be lifted automatically at the end of the 90 days. Instead, DHS is required to report to the President within 20 days what additional information may be needed from particular countries for adjudications of a visa, admission or other benefit under the INA in order to determine that the individual seeking the benefit “is not a security or public-safety threat.”  Each country will then be requested to provide such information, and will have 50 days to do so.  After that 50-day period, “the Secretary of Homeland Security, in consultation with the Secretary of State and the Attorney General, shall submit to the President a list of countries recommended for inclusion in a Presidential proclamation that would prohibit the entry of appropriate categories of foreign nationals of countries that have not provided the information requested until they do so or until the Secretary of Homeland Security certifies that the country has an adequate plan to do so, or has adequately shared information through other means.”

Will the ban be extended to include other countries?

EO2’s call for a DHS report based, in part, on information provided by other countries that the U.S. government says it needs to properly review and vet individuals appears to allow for DHS to recommend including additional countries in the ban, until they provide the U.S. government with information DHS is requesting of them. This certainly leaves open the possibility and even likelihood of additional countries being included in the ban, should the other countries either not cooperate or not provide information deemed to be adequate by the U.S. government.

Suspension of the U.S. Refugee Admissions Program (USRAP)

Who is affected by the suspension of USRAP?

All refugees being processed abroad and seeking admission to the United States would be affected.  However, the suspension of USRAP, like the entry ban, has been enjoined as it relates to any refugees with a bona fide relationship with persons or entities in the United States.  Pursuant to the Hawaii District Court’s order of July 13, 2017, this includes all refugees who have a formal assurance from a refugee resettlement agency, as well as all refugees classified under the Lautenberg Program.

How long is the suspension of USRAP?

To the extent it is not preserved by the injunctions as modified by the Supreme Court and clarified by the Hawaii District Court’s order, the USRAP would be suspended for 120 days. During this time, the DOS and DHS are required to review the application and adjudication process to determine what additional procedures to take to ensure that refugees “do not pose a threat to the security and welfare of the United States” and to implement those procedures. After the 120 days, DOS can resume refugee admissions only for nationals of countries that are found to have sufficient safeguards to ensure the security and welfare of the United States.

How many refugees will be let into the United States?

Both EO1 and EO2 stated that DOS and DHS may admit only 50,000 refugees for fiscal year 2017 (after the suspension is lifted). This represents a more than 50% reduction in the number of refugee admissions, and the purported 50,000 ceiling for the fiscal year has now already been reached.  However, the Supreme Court clarified in its decision that refugees having a bona fide relationship with a person or entity in the United States are exempt from this limit under the modified injunction, just as they are exempt from the overall suspension of USRAP.  Following the July 13, 2017 order of the U.S. District Court for the District of Hawaii, this exemption includes all refugees who have a formal assurance from a refugee resettlement agency, as well as all refugees classified under the Lautenberg Program.

Elimination of Mailed-In Visa Applications or the “Drop-Box” Application

EO2, like EO1, eliminates the ability of some individuals who need visas to apply for their visas at a U.S. consulate without an in-person interview. Previously, some individuals—due to age, or the fact that they were repeat applicants—could mail in their passports to the U.S. consulate or use a “drop-box” system when applying for a visa. This visa interview waiver program has been suspended. Now, anyone who needs a U.S. visa will be required to make an appointment at a U.S. consulate and appear in person for the visa interview.

The impact of this change may be significant, imposing increased burdens on consular staff, longer wait times to schedule visa appointments, and longer waits for individuals to receive their passports and visas back from the consulate. U.S. employers who await the arrival or return of employees may also be negatively affected given these anticipated slowdowns in the process to obtain U.S. visas.

Does the Executive Order change the Visa Waiver Program or ESTA?

No. The “visa interview waiver program” is different from the Visa Waiver Program (VWP), which allows citizens of 38 named countries to travel to the United States. The VWP is still in effect. Citizens of most Western European countries, and others (e.g., Australia, New Zealand, Japan, Singapore), may still seek admission to the United States on the basis of their passports and an ESTA clearance

July 2017 Immigration Update

Headlines:

  1. Supreme Court Partially Lifts Trump Travel Ban Preliminary Injunctions – The Supreme Court plans to hear arguments in the related cases in October brought against the Trump administration in the U.S. Courts of Appeals for the Ninth and Fourth Circuits.
  2. USCIS Resumes Premium Processing for H-1B Petitions Filed for Conrad 30 Medical Doctors, Interested Government Agencies – USCIS said it plans to resume premium processing of other H-1B petitions as workloads permit.
  3. International Entrepreneur Final Rule Expected To Be Delayed, Scrapped – The Trump administration reportedly has decided to delay the rule’s effective date until March 2018, and ultimately to rescind it.
  4. USCIS Redesigns Green Card Application – The new Form I-485 and instructions “have been substantially updated to reduce complexity after collecting comments from the public and stakeholders,” USCIS said.
  5. Minor Lies Can’t Be Used to Revoke Citizenship, Supreme Court Rules – The Supreme Court noted that the law demands “a causal or means-end connection between a legal violation and naturalization.”
  6. State Dept. Releases Diversity Visa Lottery 2018 Results, Notifies Winners – Those selected will need to act on their immigrant visa applications quickly, the bulletin warns.
  7. ABIL Global: Germany – Effective August 1, 2017, the German parliament is implementing an EU directive on intra-company transfers.
  8. Firm In The News

Details:

  1. Supreme Court Partially Lifts Trump Travel Ban Preliminary Injunctions

On June 26, 2017, the Supreme Court partially lifted preliminary injunctions that barred the Department of State from enforcing section 2 of Executive Order 13780, which suspended for 90 days the entry into the United States of, and the issuance of visas to, nationals of six designated countries—Iran, Libya, Somalia, Sudan, Syria, and Yemen—and from enforcing section 6, which suspends refugee admissions from all countries for 120 days. The Supreme Court plans to hear arguments in the related cases in October brought against the Trump administration in the U.S. Courts of Appeals for the Ninth and Fourth Circuits.

The Department stated in a briefing that the travel ban for refugees will start July 6. Refugees scheduled to arrive before then are exempt from the temporary ban. The Department sent a cable to all diplomatic and consular posts implementing Executive Order 13780, in light of the Supreme Court’s ruling on President Trump’s travel ban, as of 8 p.m. ET on June 29, 2017. The cable notes that the Supreme Court’s ruling allows the travel ban to be enforced only against foreign nationals who lack a “bona fide relationship with a person or entity in the United States.” The cable states that applicants who are nationals of the affected countries who are determined to be otherwise eligible for visas and to have a credible claim of a bona fide relationship with a person or entity in the United States are exempt from the suspension of entry in the United States under section 2(c) of the order. Applicants who are nationals of the affected countries and who are determined to be otherwise eligible for visas, but who are determined not to have a qualifying relationship, “must be eligible for an exemption or waiver as described in section 3 of the [order] in order to be issued a visa,” the cable states.

The cable notes that any such relationship with a “person” must be a close familial relationship,” as defined in the cable. Any relationship with an entity “must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading the E.O.” “Close family” is defined as a parent (including parent-in-law), spouse, child, adult son or daughter, son-in-law, daughter-in-law, sibling, whether whole or half. This includes step relationships. “Close family” does not include grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-law and sisters-in-law, and any other “extended” family members, the cable states.

The cable notes the following examples of who may and may not be included in the exemption from the travel ban:

[A]n eligible I visa applicant employed by foreign media that has a news office based in the United States would be covered by this exemption [from the travel ban]. Students from designated countries who have been admitted to U.S. educational institutions have a required relationship with an entity in the United States. Similarly, a worker who accepted an offer of employment from a company in the United States or a lecturer invited to address an audience in the United States would be exempt. In contrast, the exemption would not apply to an applicant who enters into a relationship simply to avoid the E.O.: for example, a nonprofit group devoted to immigration issues may not contact foreign nationals from the designated countries, add them to client lists, and then secure their entry by claiming injury from their inclusion in the E.O. Also, a hotel reservation, whether or not paid, would not constitute a bona fide relationship with an entity in the United States.

The cable states that the travel ban does not apply to certain categories of individuals, such as those who were inside the United States as of June 29, 2017, who have a valid visa as of June 29, 2017, or who had a valid visa at 8 p.m. ET January 29, 2017, even after their visas expire or they leave the United States. The cable also notes:

No visas will be revoked based on the E.O. [Executive Order], even if issued during the period in which Section 2(c) was enjoined by court order or during the 72-hour implementation period. New applicants will be reviewed on a case-by-case basis, with consular officers taking into account the scope and exemption provisions in the E.O. and the applicant’s qualification for a discretionary waiver. Direction and guidance to resume normal processing of visas following the 90-day suspension will be sent [via separate cable].

In a related statement issued publicly on June 29, 2017, the Department noted:

The Supreme Court’s order specified that the suspension of entry in section 2(c) of Executive Order 13780 may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States. Applicants seeking B, C-1, C-3, D, or I visas will need to demonstrate that they have the required bona fide relationship in order to be exempt, or they may qualify for a waiver pursuant to the terms of the E.O. Qualified applicants in other nonimmigrant visa categories are considered exempt from the E.O., as a bona fide relationship to a person or entity in the United States is inherent in the requirements for the visa classification, unless the relationship was established for the purpose of evading the order.

The statement says that an individual who wishes to apply for an immigrant visa “should apply for a visa and disclose during the visa interview any information that might demonstrate that he or she is exempt from section 2(c) of the Executive Order.” A consular officer “will carefully review each case to determine whether the applicant is affected by the E.O. and, if so, whether the case qualifies for a waiver,” the statement says.

The statement also includes the following information with respect to students and short-term employees:

I’m a student or short-term employee that was temporarily outside of the United States when the Executive Order went into effect. Can I return to school/work?

If you have a valid, unexpired visa, the Executive Order does not apply to your return travel.

If you do not have a valid, unexpired visa, the Supreme Court’s decision specified that section 2(c) of the Executive Order may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States. One example cited in the Supreme Court’s decision was a student from a designated country who had been admitted to U.S. university, thereby demonstrating a credible claim of a bona fide relationship with an entity in the United States.

The Supreme Court’s decision is at https://www.supremecourt.gov/opinions/16pdf/16-1436_l6hc.pdf. The Department of State’s public statement is at https://travel.state.gov/content/travel/en/news/important-announcement.html. A related “background briefing” is at https://www.state.gov/r/pa/prs/ps/2017/06/272281.htm. The full text of the cable is at http://live.reuters.com/Event/Live_US_Politics/989297085. The Executive Order is at https://www.whitehouse.gov/the-press-office/2017/03/06/executive-order-protecting-nation-foreign-terrorist-entry-united-states. A Department of Homeland Security FAQ is at https://www.dhs.gov/news/2017/06/29/frequently-asked-questions-protecting-nation-foreign-terrorist-entry-united-states. An advisory by NAFSA: Association of International Educators is at https://www.nafsa.org/Content.aspx?id=57494.

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  1. USCIS Resumes Premium Processing for H-1B Petitions Filed for Conrad 30 Medical Doctors, Interested Government Agencies

U.S. Citizenship and Immigration Services (USCIS) has resumed premium processing for H-1B petitions filed for medical doctors under the Conrad 30 Waiver program, as well as interested government agency waivers. The Conrad 30 program allows certain medical doctors to stay in the United States on temporary visas after completing their medical training to work in rural and urban areas that have a shortage of physicians.

Eligible petitioners for medical doctors seeking H-1B status under the Conrad 30 program, or through an interested government agency waiver, can file Form I-907, Request for Premium Processing Service, for Form I-129, Petition for a Nonimmigrant Worker. Form I-907 can be filed together with an H-1B petition or separately for a pending H-1B petition, USCIS noted.

USCIS said it plans to resume premium processing of other H-1B petitions as workloads permit. “We will make additional announcements with specific details related to when we will begin accepting premium processing for those petitions,” the agency said. Until then, premium processing remains temporarily suspended for all other H-1B petitions. USCIS said it will reject any Form I-907 filed for those petitions, and if the petitioner submitted one check combining the Form I-907 and Form I‑129 fees, USCIS will reject both forms.

The USCIS notice is at https://www.uscis.gov/news/news-releases/uscis-resume-h-1b-premium-processing-physicians-under-conrad-30-waiver-program. Information on the Conrad 30 program is at https://www.uscis.gov/working-united-states/students-and-exchange-visitors/conrad-30-waiver-program. Information on interested government agency waivers is at https://travel.state.gov/content/visas/en/study-exchange/student/residency-waiver/request-by-federal-government-agency.html.

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  1. International Entrepreneur Final Rule Expected To Be Delayed, Scrapped

A final rule on international entrepreneurs, issued by the Obama administration on January 17, 2017, and scheduled to take effect July 17, 2017, was recently returned to the Office of Management and Budget for further review. According to new reports, the Trump administration has decided to delay the rule’s effective date until March 2018, and ultimately to rescind it.

The final rule, intended to encourage entrepreneurs wishing to build companies in the United States, would have added new regulatory provisions guiding the use of parole on a case-by- case basis with respect to entrepreneurs of start-up entities who can demonstrate through evidence of “substantial and demonstrated potential for rapid business growth and job creation” that they would provide a “significant public benefit” to the United States. Such potential would be indicated by, among other things, “the receipt of significant capital investment from U.S. investors with established records of successful investments, or obtaining significant awards or grants from certain Federal, State or local government entities.” If granted, parole would provide a temporary initial stay of up to 30 months (which may be extended by up to an additional 30 months) “to facilitate the applicant’s ability to oversee and grow his or her start-up entity in the United States.”

A group of investors and startup founders in 25 states recently sent a letter to President Trump encouraging him to allow the rule to move forward. Noting that immigrant entrepreneurs are a “critical driver of increased economic activity” in the United States, the letter states that the international entrepreneur rule would be a “job creation tool” and is “desperately needed at a time when U.S. entrepreneurial leadership is being challenged by other countries.” Among other efforts, French President Emmanuel Macron recently announced a new technology visa for start-up founders, employees, and investors. “I want France to attract new entrepreneurs, new researchers, and be the nation for innovation and start-ups,” he said. And the United States’ next-door neighbor, Canada, offers an entrepreneur start-up visa program that grants permanent residence to immigrant entrepreneurs.

Bobby Franklin, president and chief executive of the National Venture Capital Association (NVCA), noted the contributions of immigrant entrepreneurship to the U.S. economy. He said that NVCA’s research has found that a third of U.S. venture-backed companies that went public between 2006 and 2012 had at least one immigrant founder. He noted a recent study showing that immigrants started more than half of U.S. “unicorns,” or privately held companies valued at more than $1 billion.

Mr. Franklin’s remarks are at https://techcrunch.com/2017/06/19/ensuring-foreign-born-founders-can-grow-their-startups-in-the-u-s/, The letter from the group of investors and startup founders discussed above is at http://nvca.org/wp-content/uploads/2017/06/Letter-to-President-Trump-on-IER-from-emerging-ecosystems.pdf. The original final rule is at https://www.gpo.gov/fdsys/pkg/FR-2017-01-17/pdf/2017-00481.pdf. A related article about the latest developments is at http://www.sfchronicle.com/business/article/Trump-administration-has-plan-to-scrap-startup-11236692.php.

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  1. USCIS Redesigns Green Card Application

U.S. Citizenship and Immigration Services (USCIS) has revised the Application to Register Permanent Residence or Adjust Status (Form I-485). The new Form I-485 and instructions “have been substantially updated to reduce complexity after collecting comments from the public and stakeholders,” USCIS said.

USCIS said that starting on June 26, 2017, there will be a 60-day “grace period” during which the agency will accept both the 01/17/17 and 06/26/17 editions of Form I-485 and Supplements A and J (which have also been revised). Beginning August 25, 2017, USCIS will only accept the revised form and supplements.

Changes to the form include:

  • Adjustments to navigation and the organization of questions, along with new spacing, columns, flow, white space, and formatting intended to enhance readability.
  • Inclusion of questions about biographic information (Form G-325A) so applicants will no longer need to file a separate form;
  • A list of 27 immigrant categories, which allows applicants to identify the specific immigrant category under which they are applying; and
  • A comprehensive, updated list of admissibility-related questions. Questions were added to ensure USCIS officers have the necessary information to better assess an applicant’s admissibility and eligibility.

USCIS noted that although both the revised Form I-485 and its instructions may look different from earlier versions, the process for filing the form and supplements A and J remains the same. Applicants must still submit their paper applications to the location listed in the form instructions.

The announcement is at https://www.uscis.gov/news/news-releases/uscis-introduces-redesigned-form-green-card-applicants. The revised form is at https://www.uscis.gov/i-485.

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  1. Minor Lies Can’t Be Used to Revoke Citizenship, Supreme Court Rules

On June 22, 2017, the U.S. Supreme Court ruled on the issue of when a lie during the naturalization process may lead to loss of U.S. citizenship. Divna Maslenjak, an ethnic Serb, lied during her naturalization process about her husband’s service as an officer in the Bosnian Serb Army. When this was discovered, the government charged her with knowingly procuring her naturalization contrary to law because she knowingly made a false statement under oath in a naturalization proceeding. A district court said that to secure a conviction, the government need not prove that her false statements were material to, or influenced, the decision to approve her citizenship application.

The U.S. Court of Appeals for the Sixth Circuit had affirmed the conviction, but the Supreme Court noted that the law demands “a causal or means-end connection between a legal violation and naturalization.” The Supreme Court said that to decide whether a defendant acquired citizenship by means of a lie, “a jury must evaluate how knowledge of the real facts would have affected a reasonable government official properly applying naturalization law.” The Supreme Court therefore said that the jury instructions in this case were in error, vacated the judgment of the Court of Appeals, and remanded the case for further proceedings.

The Supreme Court’s opinion is at https://www.supremecourt.gov/opinions/16pdf/16-309_h31i.pdf.

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  1. State Dept. Releases Diversity Visa Lottery 2018 Results, Notifies Winners

In the July 2017 Visa Bulletin, the Department of State released the diversity visa (DV) fiscal year 2018 results. The Kentucky Consular Center has registered and notified the winners of the DV-2018 diversity lottery. Those selected will need to act on their immigrant visa applications quickly, the bulletin warns.

The DV lottery makes available 50,000 permanent resident visas annually to persons from countries with low rates of immigration to the United States. Approximately 115,968 applicants have been registered and notified and may now make an application for an immigrant visa. The bulletin says that since it is likely that some of the first 50,000 persons registered will not pursue their cases to visa issuance, the larger figure is intended to ensure that all DV-2018 numbers will be used during FY 2018 (October 1, 2017, through September 30, 2018).

Applicants registered for the DV-2018 program were selected at random from 14,692,258 qualified entries (23,088,613 with derivatives) received during the 34-day application period that ran from Wednesday, October 4, 2016, until Monday, November 7, 2016. The visas have been apportioned among six geographic regions with a maximum of seven percent available to persons born in any single country. During the visa interview, the bulletin notes, principal applicants must provide proof of a high school education or its equivalent, or show two years of work experience in an occupation that requires at least two years of training or experience within the past five years.

Registrants living legally in the United States who wish to apply for adjustment of their status must contact U.S. Citizenship and Immigration Services for information on the requirements and procedures. Once the visa numbers have been used, the program for FY 2018 will end. Selected applicants who do not receive visas by September 30, 2018 will derive no further benefit from their DV-2018 registration.  Similarly, spouses and children accompanying or following to join DV-2018 principal applicants are only entitled to derivative diversity visa status until September 30, 2018.

The bulletin notes that dates for the DV-2019 program registration period will be publicized in the coming months.

The July Visa Bulletin, which includes a statistical country-by-country breakdown of those registered for the DV-2018 program, is at https://travel.state.gov/content/visas/en/law-and-policy/bulletin/2017/visa-bulletin-for-july-2017.html.

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  1. ABIL Global: Germany

Effective August 1, 2017, the German parliament is implementing European Union (EU) Directive 2014/66/EC (Intra-Company Transfer (ICT)).

With the ICT Scheme, the EU Directive aims at providing a common framework for all participating member states (the United Kingdom, Ireland, and Denmark opted out) covering the GATS Mode 4 commitments on Intra-Group Transfers.

Overview: To be subject to this ICT scheme, third-country nationals must obtain a so-called ICT permit issued by the participating EU country where they will spend most of their time. The ICT permit is the first EU immigration permit that allows employment not just in the issuing member state but in a second member state for a period of up to 90 days (short-term mobility). To exercise the right to short-term mobility, the holder of an ICT permit issued by another member state must notify the Bundesamt für Migration und Flüchtlinge (BAMF) of the intended employment by providing information on the salary and work conditions. Unless the German administration actively refuses approval of the intended travel within 20 days, the third-country national is legally allowed to engage in short-term mobility under the conditions notified. Holders of an ICT permit issued by a fellow member state may also relocate for a period of more than 90 days to Germany by applying for a Mobile ICT card at the German immigration authorities before the transfer. If such an application is submitted 20 days before the start of the transfer and the ICT permit of the other EU member state is still valid, staying in Germany and working at the German entity is permitted for 90 days until the immigration authority’s decision has been made.

Eligibility: The ICT Card can be issued to third-country nationals dispatched from their employer abroad to work as a CEO/CFO/comparable manager, specialist, or trainee at a group company in Germany. Its validity is limited to a maximum of three years for CEO/CFO/comparable manager or specialist, and one year for trainees. The group relationship requires a group of companies that functions as a single economic entity through a common source of control, either by direct or indirect 51 percent ownership or domination agreements creating a structure of parent and subsidiary/affiliated companies. Managers are defined as persons directing the host entity or one of its departments with the power to “hire and fire” and who have sole responsibility for a substantial budget and report directly to directors or shareholders. A specialist needs to prove essential and specific knowledge in the area of business and/or the group company or host entity procedures, and a high level of qualification and relevant experience. Before a transfer to Germany, the applicant in the CEO/CFO/manager/specialist category must be employed with an entity of the same company or group for at least six months. A trainee is qualified by a university degree to undergo a paid traineeship during which, as part of the professional development, training in business techniques and methods is received.

Application process: The third-country national aiming for a German ICT Card must file a visa application with the German mission abroad at the place of residence. Visa waiver schemes that exist for other immigration categories and apply to certain nationalities may not be used when applying for the ICT Card. The ICT Card is subject to an internal approval procedure, which includes the German labor authority’s verifying that salary and employment conditions will be comparable to those of German employees.

Note that when dealing with the ICT scheme, the implementations of the framework differ within the different EU member states.

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  1. Firm In The News

At the AILA Annual Conference 2017 in New Orleans, LA, June 21-24, 2017, Cyrus D. Mehta, Cora-Ann V. Pestaina, and David Isaacson were featured speakers.

Cyrus D. Mehta was Discussion Leader on a panel entitled Avoiding Family Feuds: Ethics in Family Practice, June 222, 2017.

Cyrus D. Mehta published Supreme Court May Have Bolstered Rights of Foreign Nationals with Ties to the United States on June 27, 2017.

Cora-Ann V. Pestaina was a speaker on a panel entitled Tricky LCA and PERM Issues for a Mobile Workforce, June 22, 2017.

David Isaacson was a speaker on a panel entitled Honestly, the United States is my Home, June 22, 2017.

David Isaacson published Sessions v Morales-Santana: The Problems of Levelling Down on June 21, 2017; and Travel Ban FAQs – Updated 06/27/2017 on June 27, 2017.

Michelle Velasco published With Adopted Decision Matter of O-A-, USCIS Accepts Provisional Certificates As Evidence of Degree Completion on July 5, 2017.

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Travel Ban FAQs – Updated 06/27/2017

These updated FAQs reflect the situation with regard to President Trump’s executive orders entitled “Protecting the Nation From Foreign Terrorist Entry Into the United States,” banning entry to the United States by certain individuals traveling from Syria, Iran, Sudan, Libya, Somalia, and Yemen, as of 8 pm Eastern Standard Time (EST) on June 27, 2017. New developments are expected to continue to rapidly change the situation.

What are the key points of these Executive Orders?

President Trump signed an Executive Order (EO1) the afternoon of Friday, January 27, 2017, available at https://www.whitehouse.gov/the-press-office/2017/01/27/executive-order-protecting-nation-foreign-terrorist-entry-united-states, which, according to its introduction, is intended to “protect Americans.” After Judge James Robart of the U.S. District Court for the Western District of Washington, on February 3, 2017, issued a TRO [http://cdn.ca9.uscourts.gov/datastore/general/2017/02/03/17-141_TRO_order.pdf] that temporarily blocked the government from enforcing EO1, and the Court of Appeals for the Ninth Circuit on February 9 refused to stay the injunction pending appeal [http://cdn.ca9.uscourts.gov/datastore/opinions/2017/02/09/17-35105.pdf ], President Trump signed a second Executive Order (EO2) on March 6, 2017, available at https://www.whitehouse.gov/the-press-office/2017/03/06/executive-order-protecting-nation-foreign-terrorist-entry-united-states.

EO2 was to become effective as of March 16, 2017, and replaced EO1, though much of EO2 is currently not in effect due to injunctions discussed further below. Certain portions of EO2 will come into effect on the morning of June 29, 2017, 72 hours after a Supreme Court decision discussed below that stayed a portion of the injunctions. A Presidential Memorandum issued on June 14, 2017 [https://www.whitehouse.gov/the-press-office/2017/06/14/presidential-memorandum-secretary-state-attorney-general-secretary] indicates that the provisions of EO2 will take effect 72 hours after the lifting of an injunction against them, to provide time for orderly implementation.

Among EO1’s key provisions were:

  • A 90-day ban on the issuance of U.S. visas to and entry to the United States of anyone who is a national of one of seven (7) “designated” countries—Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. Iraq was subsequently removed from the list when EO2 was issued.
  • An immediate review by the U.S. Department of Homeland Security (DHS) of the information needed from any country to adequately determine the identity of any individual seeking a visa, admission or other immigration benefit and that they are not “security or public-safety threat[s].” This report must be submitted within 30 days and must include a list of countries that do not provide adequate information.
  • The suspension of the U.S. Refugee Admissions Program (USRAP) for 120 days.
  • The implementation of “uniform screening standards for all immigration programs” including reinstituting “in person” interviews.
  • A requirement that all individuals who need visas apply for them in person at U.S. consulates, rather than allowing “mail-in” or drop-box applications.

EO2 added a number of exemptions and discretionary waivers that limited the effect of EO1 in an effort to address some of the concerns raised by Judge Robart in his TRO and by the Court of Appeals for the Ninth Circuit. According to EO2, the 90-day ban on issuance of visas and entry into the United States for nationals of the six designated countries would only apply to those who

  • Were outside the United States on the effective date of EO2;
  • Did not have a valid visa at 5 p.m., Eastern Standard Time on January 27, 2017 (when EO1 was first promulgated); and
  • Did not have a valid visa on the effective date of EO2.

EO2 further exempted several classes of persons from its entry ban:

  • Any lawful permanent resident of the United States (LPR);
  • Anyone admitted to or paroled into the United States after the effective date of EO2;
  • Anyone with a document other than a visa permitting travel to the United States, such as an advance parole document, valid on the effective date of EO2 or afterwards;
  • Any dual national traveling on a passport from a non-designated country;
  • Anyone traveling on a diplomatic or diplomatic-type visa, NATO visa, C-2 visa for travel to the UN, or G-1, G-2, G-3 or G-4 visa;
  • Anyone granted asylum, admitted as a refugee, or granted withholding of removal, advance parole, or protection under the Convention Against Torture.

The references to the effective date of EO2 have been complicated by subsequent developments, especially the June 14, 2017 presidential memorandum [https://www.whitehouse.gov/the-press-office/2017/06/14/presidential-memorandum-secretary-state-attorney-general-secretary], so anyone potentially affected by exemptions linked to the effective date should consult an immigration attorney.

The Supreme Court has temporarily left in place part of two injunctions against EO2, as described in more detail below, so as to create an additional exemption. Under the modified injunctions, the travel ban and refugee ban of EO2 do not apply to “foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.” In its decision issued on June 26, 2017 [https://www.supremecourt.gov/opinions/16pdf/16-1436_l6hc.pdf], the Supreme Court elaborated further on the requirements of such a bona fide relationship:

  • For a bona fide relationship with an individual person to qualify under the modified injunction, “a close familial relationship is required. A foreign national who wishes to enter the United States to live with or visit a family member, like [one plaintiff’s] wife or [another plaintiff’s] mother-in-law, clearly has such a relationship.”
  • For a bona fide relationship with an entity, “the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading EO-2.” According to the Supreme Court, this could include:
    • Students admitted to a U.S. university;
    • “a worker who has accepted an offer of employment from an American company”; or
    • “a lecturer invited to address an American audience”.

The list is not necessarily an exclusive one, but the concept of a bona fide relationship will not stretch so far as to cover, for example, a nonprofit which adds affected immigrants to its client list for the purpose of claiming harm from their exclusion.

In addition to the exemptions, EO2 provides a consular officer or CBP official with the authority to grant discretionary waivers of the ban on a case-by-case basis. It lists various circumstances under which waivers might be appropriate, including:

  • One previously admitted to the United States for work, study, or other long-term activity, who seeks to enter the United States to resume that activity and whose activities would be impaired by denial of entry during the suspension period;
  • One who seeks to enter the United States “for significant business or professional obligations” which would be impaired by denial of entry during the suspension period;
  • One who “seeks to enter the United States to visit or reside with a close family member (e.g., a spouse, child, or parent) who is a United States citizen, lawful permanent resident, or alien lawfully admitted on a valid nonimmigrant visa, and the denial of entry during the suspension period would cause undue hardship”;
  • The case of “an infant, a young child or adoptee, an individual needing urgent medical care, or someone whose entry is otherwise justified by the special circumstances of the case”;
  • One who has been employed by the United States government and “can document that he or she has provided faithful and valuable service to the United States Government”;
  • One traveling for purposes related to certain international organizations;
  • “a landed Canadian immigrant who applies for a visa at a location within Canada”; or
  • One “traveling as a United States Government-sponsored exchange visitor.”

Some of these categories of potential waivers may be rendered unnecessary by the modified injunction left in place by the Supreme Court, but others remain potentially relevant.

What is an Executive Order? Can it be challenged?

Does the EO change the law or regulations?

While the president may have the authority to issue such orders if the administration deems the action to be in the public interest, EO1 and EO2 did not change, replace, or repeal existing statutes (laws) or regulations.

A number of legal challenges have been made to EO1 and EO2. Many believe that wide sweeping bans such as the travel ban effectively discriminate against individuals on a religious basis, as all the countries affected are predominantly Muslim. Others have maintained that the travel ban and change in refugee admissions rules are beyond the President’s statutory authority.

On Saturday, January 28, 2017, U.S. federal judge Ann Donnelly of the U.S. District Court for the Eastern District of New York in Brooklyn issued an emergency stay [http://i2.cdn.turner.com/cnn/2017/images/01/28/darweesh.v.trump_decision.and.order.document-3.pdf] that temporarily blocked the government from sending people out of the country under EO1 after they had landed at a U.S. airport with valid visas or green cards. On Friday, February 3, 2017, Judge James Robart of the U.S. District Court for the Western District of Washington issued a TRO [http://cdn.ca9.uscourts.gov/datastore/general/2017/02/03/17-141_TRO_order.pdf] that blocked the government from enforcing the travel ban at all. Several other federal courts also issued stays or TROs. In light of the Western District of Washington TRO, which applied nationwide, DHS announced on February 4 that it had “suspended any and all actions implementing the affected sections of the Executive Order” [https://www.dhs.gov/news/2017/02/04/dhs-statement-compliance-recent-court-order].

The federal government appealed to the Court of Appeals for the Ninth Circuit and asked the Court of Appeals for an emergency stay of the Western District of Washington TRO, but on February 5, the Court of Appeals denied the request for an immediate administrative stay pending review of the emergency motion for stay [http://cdn.ca9.uscourts.gov/datastore/general/2017/02/05/17-35105.pdf ], and on February 9, the Court of Appeals issued a published Order denying the motion for stay pending appeal [http://cdn.ca9.uscourts.gov/datastore/opinions/2017/02/09/17-35105.pdf]. Rather than pursuing the appeal regarding EO1, the Administration in March promulgated EO2 in place of EO1 and withdrew the appeal regarding EO1.

EO2 was also challenged in the courts before it could take effect. A TRO against most of its provisions [http://cdn.ca9.uscourts.gov/datastore/general/2017/03/30/17-15589%203-15%20DC%20order.pdf ], and then a preliminary injunction against the same provisions [http://cdn.ca9.uscourts.gov/datastore/general/2017/03/30/17-15589%203-29%20DC%20order.pdf], were issued by the U.S. District Court for the District of Hawaii in the case of Hawaii v. Trump, and that injunction was upheld almost in its entirety by the Court of Appeals for the Ninth Circuit [http://cdn.ca9.uscourts.gov/datastore/uploads/general/cases_of_interest/17-15589%20per%20curiam%20opinion.pdf], although the Court of Appeals narrowed the Hawaii injunction so as to allow the government to conduct the internal reviews provided for by EO2. The travel ban in section 2(c) of EO2 was also enjoined by the U.S. District Court for the District of Maryland in the case of IRAP v. Trump [http://www.mdd.uscourts.gov/sites/mdd/files/TDC-17-0361-Opinion-03162017.pdf], and that injunction was upheld by the en banc Court of Appeals for the Fourth Circuit [http://coop.ca4.uscourts.gov/171351.P.pdf].

The government sought review of the Hawaii and Maryland injunctions against EO2 in the U.S. Supreme Court. On June 26, 2017, the Supreme Court issued a decision [https://www.supremecourt.gov/opinions/16pdf/16-1436_l6hc.pdf] which granted the government’s petitions for writs of certiorari to review the injunctions and, pending that review, partially stayed the injunctions, narrowing them so that they only applied to those having a bona fide relationship with a person or entity in the United States, as discussed above.

The 90-Day Travel Ban

What exactly does the 90-day ban prohibit?

The ban halts visa issuance and entry to the United States for affected individuals.

When the ban is effective, the U.S. Department of State’s (DOS) consulates around the world are not permitted to issue visas to individuals who are nationals of a designated country. Consulates will deny pending visa applications of any individuals who fall within the scope of the EO—both nonimmigrant (temporary) visas, such as Bs, Fs, and H-1Bs, and immigrant visas for those seeking to become U.S. permanent residents.

When EO1 was in effect, DOS had initially indicated that all visas already issued to those within the scope of EO1 were provisionally revoked. The number of revoked visas is subject to significant uncertainty, although it is clear that it is large: a lawyer for the Department of Justice advised a judge hearing one of the above-referenced cases that more than 100,000 visas had been revoked, but DOS then said the number was fewer than 60,000. [https://www.nytimes.com/2017/02/03/us/visa-ban-legal-challenge.html]. Following the TRO against EO1, however, DOS indicated that it had lifted the provisional revocation, and that the visas were now valid again if they had not been physically cancelled. [https://travel.state.gov/content/travel/en/news/important-announcement.html ]. (In instances where visas were physically cancelled, individuals would require either a new visa, or a waiver from U.S. Customs and Border Protection (CBP) at the port of entry.)

At times when the relevant sections of EO1 were not subject to a TRO, stay, or injunction with respect to particular individuals, CBP officers at border crossings, U.S. airports, and pre-flight inspection at certain foreign airports were not permitted to admit such individuals who are nationals of designated countries or allow them to enter the United States, even if they have a facially valid visa. The same will now apply to EO2.

Who is affected by the 90-day ban?

This ban applies to nationals of the six (6) designated countries: Iran, Libya, Somalia, Sudan, Syria, and Yemen. (EO1 had also included a seventh country, Iraq, but EO2 removed Iraq from the list.) It does not apply to those subject to the various EO2 exceptions listed above. Under the Supreme Court’s modification of the injunctions issued by the Hawaii and Maryland courts, it also does not apply to those who have a credible claim of a bona fide relationship with a person or entity in the United States. It is not yet clear how CBP and the Department of State will implement the exemptions, including the exemption under the modified injunctions for those having a bona fide relationship.

What does it mean to be a “national”?

A national is a citizen of a particular country, someone entitled to hold the country’s passport. This encompasses someone born in the country or who is a citizen of the country. This may include individuals who were not born in the country but whose parents were, if such parentage entitles them to citizenship in that country. For example, someone born in Germany but whose parents were born in Iran may be considered an Iranian under Iranian law, and therefore may be considered subject to the ban.

Does the ban include “dual” nationals? What if the individual was born in one of the seven countries but is now a citizen of another country (e.g., Canada) and only holds that passport?

According to section 3(b)(iv) of EO2, the ban does not include “any dual national of a country designated under section 2 of this order when the individual is traveling on a passport issued by a non-designated country.” The situation under EO1 was less clear.

Does the ban include permanent residents (“green card” holders)?

Section 3(b)(1) of EO2 specifically exempts LPRs from the ban. EO1 as originally written did seem to ban the entry of affected lawful permanent residents (LPRs), and was applied to at least some LPRs in practice. However, an “authoritative guidance” memorandum subsequently issued by Counsel to the President Donald F. McGahn on February 1, 2017, “clarif[ied]” that EO1 did not ban entry by LPRs.

Does the ban apply to someone who has just traveled to a designated country?

No. Unless the individual is a national of a designated country, the ban does not apply solely because he or she has visited one or more of the six countries. Travel to one of the six countries, however, may increase the likelihood of being questioned by CBP about the nature of the visit—why the person was in the country, for how long, etc., as already provided for in the December 2015 Visa Waiver Program Improvement and Terrorist Travel Prevention Act. Such individuals may be placed in secondary inspection on arrival at a U.S. airport so that CBP may question them about the purpose and nature of such travel.

Can an affected individual still board a plane and try to enter upon arrival at a U.S. airport?

There were reports of airlines refusing to board individuals who appeared to be affected by EO1’s ban. Before making any travel plans, individuals should consult with an immigration attorney for individual counsel and advice.

Should affected individuals travel outside the United States?

Individuals who are affected by this ban must understand that if they depart the United States during the 90-day period, and if the ban is in effect when they attempt to return, they will most likely not be able to return. We caution potentially affected individuals who are in the United States, and who believe they qualify as having a bona fide relationship with a person or entity in the United States or qualify for another exception to EO2, to consult with an immigration attorney before making a decision to travel abroad.

What about individuals who are outside the United States and want to return?

While the ban is in effect, airlines may refuse to board anyone who appears to be affected by the ban. Those who are able to board a plane almost certainly will be refused admission (entry) to the United States on arrival at a U.S. airport. Anyone affected by the ban who is outside the United States at a time when the ban is in effect should consult with an immigration attorney before attempting to return in order to understand the current state of affairs and the risks involved, and to develop a strategy based upon his or her individual circumstances.

What will happen to those who are refused entry by CBP?

Individuals who are refused admission by CBP will be instructed to make arrangements to return on the next outbound flight to the destination from which they arrived. While waiting to return abroad or for a decision on a waiver that would allow their entry (see below regarding exceptions to the ban), they will be held or detained by CBP. They will not necessarily be able to make phone calls or send emails or text messages. CBP’s view is that there is no right to an attorney for individuals who arrive at U.S. airports or land ports-of-entry and seek admission to the United States. In practice, many CBP officers will agree to speak with lawyers representing such individuals. Keep in mind that as the ban comes back into effect, CBP officers may be overwhelmed in dealing with these arrivals and that it may be difficult—even for experienced immigration attorneys—to communicate quickly with CBP. Wherever possible, advance planning will be critical.

Are there any exceptions to the ban?

EO2 as written contains a number of exceptions for persons already having various sorts of lawful status or documentation, as discussed above. The injunctions modified by the Supreme Court further exempt from the application of EO2 anyone having a bona fide relationship with a person or institution in the United States.

EO2 also permits DOS and DHS to issue visas, or other immigration benefits, to affected individuals on a “case-by-case” basis, as discussed above. At this time, it is not clear how such requests will be adjudicated. Anyone seeking to make such a request during a time when the travel ban is in effect is advised to consult with an immigration attorney in order to prepare a strategy and supporting documentation.

Can CBP detain individuals?

Individuals who are refused admission and who agree to return on an outbound flight will be detained or held by CBP until they can depart.

At this time, we do not know how CBP will be dealing with those who seek to challenge the refusal of admission. When EO1 was first implemented, there were credible reports that CBP was detaining LPRs notwithstanding the court cases and Secretary Kelly’s statement of January 29, 2017 [https://www.dhs.gov/news/2017/01/29/statement-secretary-john-kelly-entry-lawful-permanent-residents-united-states]. It is also possible that CBP may agree to defer the inspection of individuals who seek to challenge the refusal of admission, which means that CBP will give them an appointment to return to CBP at a later date to review their case. At this time, it is not known how CBP will be handling such situations; different CBP officers and airports may take different actions.

Any affected individual thinking of traveling to the United States should consult with an immigration attorney about his or her individual circumstances. EO2, like EO1, does not change the existing immigration law, including the right to apply for asylum.

How are the U.S. consulates implementing the ban as it applies to visas?

It is not yet clear how the DOS will implement the EO2 ban, as limited by the modified injunction left in place by the Supreme Court to apply only to those lacking a bona fide relationship with a person or entity in the United States.

According to credible sources, when EO1 first came into effect, the DOS had issued a cable to all embassies and consular posts to suspend the issuance of nonimmigrant and immigrant visas for nationals of designated countries. As discussed above, EO2 has an exception for nationals of the designated countries who are applying for certain diplomatic and related visas; presumably affected individuals seeking such visas may still apply for and expect to receive these visas, if otherwise eligible. Other visa categories may necessarily be covered by the modified injunction, since many visa categories by their nature require a relationship with a U.S. family member or U.S. entity such as an employer or school.

While EO1 was in effect, consulates were advised to stop scheduling and conducting interviews of affected individuals. They also would stop issuing (printing) visas for anyone who was already interviewed but who has not yet received the visa. Courier services were instructed to return the unadjudicated applications to the affected individuals. Consular posts posted alerts on their websites to advise individuals of the suspension of visa issuance “effective immediately and until further notification.” With regard to immigrant visas for those affected by the ban, the DOS initially indicated that it would cancel currently scheduled interviews and would not schedule immigrant visa interviews for March or April.

While the TRO and injunctions completely barring enforcement of the ban under EO1 were in effect, however, visa processing appears to have resumed. The State Department announced [https://travel.state.gov/content/visas/en/news/executive-order-on-protecting-the-nation-from-terrorist-attacks-by-foreign-nationals.html] that “U.S. embassies and consulates will resume scheduling visa appointments” for nationals of the countries that had been affected by EO1. The same will presumably be true for those covered by the modified injunction against EO2, but the details of implementation are not yet clear.

How will EO2 affect applications pending before U.S. Citizenship and Immigration Services (USCIS)?

According to credible reports, including conversations with USCIS officers at local USCIS Field Offices, when EO1 was first implemented, DHS leadership initially received email instructions over the weekend to suspend the adjudication of immigration applications by affected individuals from any of the seven designated countries. However, on February 2, 2017, Acting USCIS Director Lori Scialabba issued a memorandum indicating that the entry bar would not affect adjudication of benefits for persons in the United States, adjudication of benefits for LPRs, or adjudication of visa petitions for persons outside the United States (since those petitions do not directly confer travel authorization). The same should apply to EO2: the entry ban will not affect most applications pending before USCIS, although refugee adjudications will be affected, and adjudication of I-730 refugee/asylee relative petitions for beneficiaries outside the United States may still be subject to further guidance.

What does EO2 mean for the immigration status of someone who is in the United States?

EO2, like EO1, only directly affects those who are applying for visas (nonimmigrant and immigrant) or seeking entry. It is theoretically possible that revocation of nonimmigrant visas could lead to holders of those visas who were in the United States being subjected to removal proceedings under section 237(a)(1)(B) of the Immigration and Nationality Act, but this charge of deportability could then be contested in those removal proceedings, as explained in a blog post by Cyrus D. Mehta [http://blog.cyrusmehta.com/2017/02/resisting-president-trumps-visa-revocations.html]. During the period when the EO1 travel ban was in effect, before the TRO was entered, it does not appear that such removal proceedings were instituted.

Might the ban be longer than 90 days?

EO2 states that the ban on visa issuance and entry is in place for 90 days. The ban, however, will not be lifted automatically at the end of the 90 days. Instead, DHS is required to report to the President within 20 days what additional information may be needed from particular countries for adjudications of a visa, admission or other benefit under the INA in order to determine that the individual seeking the benefit “is not a security or public-safety threat.” Each country will then be requested to provide such information, and will have 50 days to do so. After that 50-day period, “the Secretary of Homeland Security, in consultation with the Secretary of State and the Attorney General, shall submit to the President a list of countries recommended for inclusion in a Presidential proclamation that would prohibit the entry of appropriate categories of foreign nationals of countries that have not provided the information requested until they do so or until the Secretary of Homeland Security certifies that the country has an adequate plan to do so, or has adequately shared information through other means.”

Will the ban be extended to include other countries?

EO2’s call for a DHS report based, in part, on information provided by other countries that the U.S. government says it needs to properly review and vet individuals appears to allow for DHS to recommend including additional countries in the ban, until they provide the U.S. government with information DHS is requesting of them. This certainly leaves open the possibility and even likelihood of additional countries being included in the ban, should the other countries either not cooperate or not provide information deemed to be adequate by the U.S. government.

Suspension of the U.S. Refugee Admissions Program (USRAP)

Who is affected by the suspension of USRAP?

All refugees being processed abroad and seeking admission to the United States would be affected. However, the suspension of USRAP, like the entry ban, has been enjoined as it relates to any refugees with a bona fide relationship with persons or entities in the United States.

How long is the suspension of USRAP?

The USRAP would be suspended for 120 days. During this time, the DOS and DHS are required to review the application and adjudication process to determine what additional procedures to take to ensure that refugees “do not pose a threat to the security and welfare of the United States” and to implement those procedures. After the 120 days, DOS can resume refugee admissions only for nationals of countries that are found to have sufficient safeguards to ensure the security and welfare of the United States.

How many refugees will be let into the United States?

The EO states that DOS and DHS may admit 50,000 refugees for fiscal year 2017 (after the suspension is lifted). This represents a more than 50% reduction in the number of refugee admissions. However, the Supreme Court clarified in its decision that refugees having a bona fide relationship with a person or entity in the United States are exempt from this limit under the modified injunction, just as they are exempt from the overall suspension of USRAP.

Elimination of Mailed-In Visa Applications or the “Drop-Box” Application

EO2, like EO1, eliminates the ability of some individuals who need visas to apply for their visas at a U.S. consulate without an in-person interview. Previously, some individuals—due to age, or the fact that they were repeat applicants—could mail in their passports to the U.S. consulate or use a “drop-box” system when applying for a visa. This visa interview waiver program has been suspended. Now, anyone who needs a U.S. visa will be required to make an appointment at a U.S. consulate and appear in person for the visa interview.

The impact of this change may be significant, imposing increased burdens on consular staff, longer wait times to schedule visa appointments, and longer waits for individuals to receive their passports and visas back from the consulate. U.S. employers who await the arrival or return of employees may also be negatively affected given these anticipated slowdowns in the process to obtain U.S. visas.

Does the Executive Order change the Visa Waiver Program or ESTA?

No. The “visa interview waiver program” is different from the Visa Waiver Program (VWP), which allows citizens of 38 named countries to travel to the United States. The VWP is still in effect. Citizens of most Western European countries, and others (e.g., Australia, New Zealand, Japan, Singapore), may still seek admission to the United States on the basis of their passports and an ESTA clearance.

Mid-June 2017 Immigration Update

Headlines:

  1. Ninth Circuit Rules Against President Trump’s Revised Travel Ban – The U.S. Court of Appeals for the Ninth Circuit held on June 12, 2017, that President Donald Trump exceeded his authority in issuing the revised executive order banning travel to the United States from certain countries.
  2. New State Dept. Form Asks Certain Visa Applicants ‘Supplemental Questions’ Regarding Social Media Usage – A new Department of State form for visa applicants asks supplemental questions of “[i]mmigrant and nonimmigrant visa applicants who have been determined to warrant additional scrutiny in connection with terrorism or other national security-related visa ineligibilities.”
  3. Labor Dept. Announces Aggressive Anti-Visa Fraud Measures; White House Considers H-1B Overhaul – Secretary of Labor Alexander Acosta recently announced actions “to increase protections of American workers while more aggressively confronting entities committing visa program fraud and abuse.”
  4. Nonprofit Group Fights Cease-and-Desist Order from DOJ – The Northwest Immigrant Rights Project (NWIRP) recently received a “cease-and-desist” letter from the Department of Justice, ordering NWIRP to stop representing clients and close down its asylum advisory program. NWIRP subsequently filed a lawsuit and was granted a temporary restraining order in May.
  5. International Entrepreneur Final Rule Sent Back to OMB for Further Review – A final rule on international entrepreneurs, issued by the Obama administration on January 17, 2017, and scheduled to take effect July 17, 2017, was recently returned to the Office of Management and Budget for further review. The Trump administration has not yet explained its plans for the rule publicly, but it could amend, postpone, or withdraw the rule.
  6. Certain STEM OPT and English Language Students Affected by Loss of Accreditation – Certain students applying for 24-month STEM OPT extension programs and English language study programs are being affected by the U.S. Department of Education’s decision no longer to recognize the Accrediting Council for Independent Colleges and Schools (ACICS) as an accrediting agency.
  7. July Visa Bulletin Notes Oversubscription of Employment-Based Green Card Categories for China EB-3 and India EB-4 Categories – The date for these preferences will once again become Current for October, the first month of fiscal year 2018.
  8. Pro Bono: DACA Recipient Can Stay, Work in United States for Now – Kuck Immigration Partners announced that the U.S. District Court for the Northern District of Georgia in Atlanta recently preliminarily enjoined USCIS’s decision to terminate DACA status and employment authorization for a Mexican person living and working in the United States.
  9. Firm In the News…

Details

  1. Ninth Circuit Rules Against President Trump’s Revised Travel Ban

The U.S. Court of Appeals for the Ninth Circuit held on June 12, 2017, that President Donald Trump exceeded his statutory authority in issuing the revised executive order banning travel to the United States from certain countries. In suspending the entry of more than 180 million nationals from six countries, suspending the entry of all refugees, and reducing the cap on the admission of refugees from 110,000 to 50,000 for fiscal year 2017, the President “did not meet the essential precondition” to exercising that authority, the court said: “The President must make a sufficient finding that the entry of these classes of people would be ‘detrimental to the interests of the United States.’ ” Further, the court said, the order “runs afoul of other provisions of the [Immigration and Nationality Act] that prohibit nationality-based discrimination and require the President to follow a specific process when setting the annual cap on the admission of refugees.” On these statutory bases, the court affirmed in large part the district court’s order preliminarily enjoining several sections of the executive order. The court also vacated the portions of the injunction that prevent the government from conducting internal reviews. The court remanded the case to the district court with instructions to reissue an order consistent with the June 12 opinion.

The Trump administration also seeks Supreme Court review of a May 25, 2017, decision by the U.S. Court of Appeals for the Fourth Circuit on the revised travel ban. In that case, the Fourth Circuit ruled against the revised executive order on constitutional grounds, citing the First Amendment’s Establishment Clause against religious discrimination.

The Ninth Circuit’s decision is at http://cdn.ca9.uscourts.gov/datastore/uploads/general/cases_of_interest/17-15589%20per%20curiam%20opinion.pdf. The Fourth Circuit’s decision is at http://coop.ca4.uscourts.gov/171351.P.pdf.

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  1. New State Dept. Form Asks Certain Visa Applicants ‘Supplemental Questions’ Regarding Social Media Usage

A new Department of State form, DS-5535, for visa applicants asks supplemental questions of “[i]mmigrant and nonimmigrant visa applicants who have been determined to warrant additional scrutiny in connection with terrorism or other national security-related visa ineligibilities,” according to a related Federal Register notice. A wide variety of organizations are expressing concerns about the new form and its use.

The form’s questions include where the applicant has traveled outside his or her country of residence in the last 15 years, with “details for each trip, including locations visited, date visited, source of funds, and length of stay.” The form also asks for information about any passports other than those listed in the visa application; full names and dates of birth of any siblings; children; current or previous spouse or civil/domestic partner; addresses where the applicant has lived during the last 15 years; phone numbers, including “primary, secondary, work, home, and mobile numbers,” used over the last 5 years; email addresses used over the past 5 years, including “primary, secondary, work, personal, and educational”; usernames for any websites or social media applications used to create or share content, including photos, videos, and status updates, over the last 5 years (the form does not ask for passwords); and employers, job descriptions, and job titles over the last 15 years.

The Federal Register notice announcing the new form explains that most of this information is already collected on visa applications but for a shorter time period; for example, 5 years rather than 15 years. The notice states that requests for names and dates of birth of siblings and, for some applicants, children are new. The request for social media identifiers and associated platforms is also new for the Department of State, although the Department of Homeland Security (DHS) already collects such information on a “voluntary basis” from certain individuals. The notice explains that applicants may be asked to provide details of their international or domestic (within their country of nationality) travel, if it appears to the consular officer that the applicant has been in an area while the area was under the operational control of a terrorist organization. Applicants “may be asked to recount or explain the details of their travel, and when possible, provide supporting documentation.”

Reaction. A number of organizations sent a letter to the Office of Management and Budget (OMB) and the Department of State expressing their concerns about the new form. Among other things, the letter acknowledges the need to secure the United States, but cautions that there is also a need to remain open to those pursuing academic study and scientific research. The letter states that the notice is likely to have a “chilling effect” not only on those required to submit additional information but indirectly on all international travelers coming to the United States. According to the letter, the notice also provides insufficient information on the criteria for identifying those required to complete the supplemental form, the effect of unintentional incomplete disclosure, and remedies for correcting information initially provided. “These additional questions could lead to unacceptably long delays in processing, which are particularly harmful to applicants with strict activity timeframes or enrollment deadlines,” the letter notes, adding that no information is provided about the longer-term use, retention, or privacy protections for the information provided. The letter asks that the State Department publish an additional notice with this and other information.

The letter notes that scientific exchanges, whether through long- or short-term visits or at professional society meetings, are vitally important to the United States. Many project collaboration meetings take place at conferences held in the United States, and not having the top international talent in attendance “would be a significant problem,” the letter states. “Scientists must periodically meet in person, and if bureaucratic hurdles for entry into the United States are too high, they will hold their meetings elsewhere, hurting U.S. economic, technological, and scientific competitiveness.” For example, the letter notes, the “American Geophysical Union and the American Physical Society both have strong international counterparts that hold regular conferences and meetings, and the collaborators could well turn to those venues instead.”

Moreover, the letter notes, many U.S. professional societies have significant numbers of international members, and it is important for those individuals to be able to attend the U.S. societies’ meetings. The letter cites a 2012 report by PricewaterhouseCoopers noting that nearly 1.8 million meetings (not all scientific) were held in the United States during 2009 involving “an estimated 205 million participants and generat[ing] more than $263 billion in direct spending and $907 billion in total industry output.” The attendance of international scientists at U.S. meetings and conferences “is important in terms of the intellectual content they contribute, for the benefit to the United States from the formation and sustainment of partnerships with U.S. counterparts, and in terms of benefits to the U.S. economy,” the letter notes.

The letter was signed by 55 U.S. professional associations and other entities, including the American Association of Collegiate Registrars and Admissions Officers, the American Society of Civil Engineers, the Association for Research in Vision and Ophthalmology, the Institute of Mathematical Statistics, NAFSA: Association of International Educators, and the Society of Engineering Science.

The OMB approved the new form on an emergency basis for six months. The form is at https://tr.usembassy.gov/supplemental-questions-visa-applicants-ds-5535/. The Federal Register notice explaining who will use the form and why is at https://www.federalregister.gov/documents/2017/05/04/2017-08975/notice-of-information-collection-under-omb-emergency-review-supplemental-questions-for-visa. The letter from U.S. professional associations and other entities expressing concerns about the form is at http://www.nafsa.org/_/file/_/amresource/DS5535Comment051817.pdf.

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  1. Labor Dept. Announces Aggressive Anti-Visa Fraud Measures; White House Considers H-1B Overhaul

Secretary of Labor Alexander Acosta recently announced actions “to increase protections of American workers while more aggressively confronting entities committing visa program fraud and abuse,” according to a Department of Labor (DOL) press release. Secretary Acosta said these measures will include “heightened use of criminal referrals. The U.S. Department of Labor will focus on preventing visa program abuse and take every available legal action against those who abuse these programs.”

The announcement states that “it is now the policy of the department to enforce vigorously all laws within its jurisdiction governing the administration and enforcement of non-immigrant visa programs,” including:

  • Directing the DOL’s Wage and Hour Division (WHD) to use all its tools in conducting civil investigations to enforce labor protections provided by the visa programs.
  • Directing the DOL’s Employment and Training Administration (ETA) to develop proposed changes to the Labor Condition Application, and directing the WHD to review its investigatory forms, to better identify systematic violations and potential fraud, and to provide greater transparency for agency personnel, U.S. workers, and the general public.
  • Directing the WHD, ETA, and Office of the DOL Solicitor to coordinate the administration and enforcement activities of the visa programs and make referrals of criminal fraud to the Office of the Inspector General (OIG).
  • Establishing a working group made up of senior leadership from ETA, WHD, and the Solicitor’s office to supervise these efforts and coordinate enforcement. The working group will invite OIG to send representatives to participate in its efforts.

DOL will continue to work with the departments of Justice and Homeland Security to further investigate and detect visa program fraud and abuse, the announcement states.

In addition, DOL said it has begun “to prioritize and publicize the investigation and prosecution of entities in violation of visa programs.” For example, the agency announced that it obtained a preliminary injunction under the H-2A visa program from the U.S. District Court for Arizona against G Farms for “illegal and life-threatening housing provided to agricultural workers.” DOL said it “continues to investigate the violations at G Farms and has also been in contact with the OIG on this matter.”

This announcement comes on the heels of President Trump’s April 18, 2017, executive order ordering several agencies to suggest H-1B reforms. The Department of Homeland Security said it plans to issue new rules and guidance on the H-1B program. According to reports, the White House is also working with the Department of Justice to consider measures such as reducing the numerical limit on, and duration of, H-1B visas, among other actions.

The announcement is at https://www.dol.gov/newsroom/releases/opa/opa20170606.

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  1. Nonprofit Group Fights Cease-and-Desist Order from DOJ

The Northwest Immigrant Rights Project (NWIRP) recently received a “cease-and-desist” letter from the Department of Justice, ordering NWIRP to stop representing clients and close down its asylum advisory program at an immigration detention center in Washington state. NWIRP subsequently filed a lawsuit and was granted a temporary restraining order in May. NWIRP provides free and low-cost legal services to thousands of immigrants each year and, as part of the larger “airport lawyers” efforts nationwide, sent staff and volunteer lawyers to SeaTac airport in Seattle, Washington, to provide emergency legal assistance to travelers caught up in President Trump’s travel ban.

The U.S. District Court for the Western District of Washington at Seattle noted that the NWIRP is the sole pro bono organization listed by the Executive Office for Immigration Review (EOIR) for the state of Washington. In 2008, EOIR published new professional conduct rules for attorneys appearing in immigration proceedings. EOIR’s rules were intended to protect individuals in immigration proceedings by disciplining attorneys who engage in “criminal, unethical, or unprofessional conduct or frivolous behavior.” One of the activities the rules targeted was “notario fraud,” where a would-be immigrant pays for ongoing legal services that are not provided. The court noted that NWIRP sometimes provides emergency legal services without the resources to commit to full future representation of each potential client. NWIRP said that it met with the local immigration court administrator to discuss the rule’s impact and “agreed that it would notify the court when it assisted with any pro se motion or brief by including a subscript or other clear indication in the document that NWIRP had prepared or assisted in preparing the motion or application.”

Nearly nine years after promulgating the rule, EOIR sent a “cease and desist” letter to NWIRP ordering the nonprofit to stop “representing aliens unless and until the appropriate Notice of Entry of Appearance form is filed with each client that NWIRP represents.” NWIRP filed suit against EOIR, among others, seeking injunctive relief and a temporary restraining order so the organization can maintain the status quo until the parties can be heard on the motion for preliminary injunction.

In granting the temporary restraining order, the court said NWIRP had shown that “it is likely to succeed on the claims that entitle it to relief; NWIRP has already suffered and is likely to continue suffering irreparable harm in the absence of temporary injunctive relief; the balance of the equities tips in NWIRP’s favor; and granting this [temporary restraining order] is in the public interest.”

The court order is at https://www.nwirp.org/wp-content/uploads/2017/05/Dkt-33-order-granting-tro.pdf.

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  1. International Entrepreneur Final Rule Sent Back to OMB for Further Review

A final rule on international entrepreneurs, issued by the Obama administration on January 17, 2017, and scheduled to take effect July 17, 2017, was recently returned to the Office of Management and Budget for further review. The Trump administration has not yet explained its plans for the rule publicly, but it could amend, postpone, or withdraw the rule.

The final rule would add new regulatory provisions guiding the use of parole on a case-by- case basis with respect to entrepreneurs of start-up entities who can demonstrate through evidence of “substantial and demonstrated potential for rapid business growth and job creation” that they would provide a “significant public benefit” to the United States. Such potential would be indicated by, among other things, “the receipt of significant capital investment from U.S. investors with established records of successful investments, or obtaining significant awards or grants from certain Federal, State or local government entities.” If granted, parole would provide a temporary initial stay of up to 30 months (which may be extended by up to an additional 30 months) “to facilitate the applicant’s ability to oversee and grow his or her start-up entity in the United States.”

The final rule is at https://www.gpo.gov/fdsys/pkg/FR-2017-01-17/pdf/2017-00481.pdf.

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  1. Certain STEM OPT and English Language Students Affected by Loss of Accreditation

Certain students applying for 24-month STEM OPT (optional practical training in science, technology, engineering, or math) extension programs and English language study programs are being affected by the U.S. Department of Education’s decision in December no longer to recognize the Accrediting Council for Independent Colleges and Schools (ACICS) as an accrediting agency.

U.S. Citizenship and Immigration Services recently announced that this determination immediately affects two immigration-related programs:

  • English language study programs, as the programs are required to be accredited under the Accreditation of English Language Training Programs Act
  • F-1 students applying for a 24-month STEM OPT extension, as the regulations require them to use a degree from an accredited Student and Exchange Visitor Program (SEVP)-certified school as the basis of their STEM OPT extensions. The school must be accredited at the time of the application; this is the date of the Designated School Official’s (DSO) recommendation on the Form I-20.

SEVP will provide guidance to affected students in notification letters if their school’s certification is withdrawn. However, students enrolled at an ACICS-accredited school should contact their designated school officials (DSOs) immediately “to better understand if and how the loss of recognized accreditation will impact the F/M student’s status and/or immigration benefits application(s).”

If an ACICS-accredited school voluntarily withdraws from SEVP certification or cannot provide evidence in lieu of accreditation for programs listed on their Form I-17, international students at these schools will have 18 months to:

  • Transfer to a new SEVP-certified program;
  • Continue their program of study until the current session end date listed on their Form I-20 (not to exceed 18 months); or
  • Leave the United States.

After this 18-month grace period, SEVP will terminate the SEVIS records of any active F/M student at an ACICS-accredited school who has not transferred to a SEVP-certified school or departed the United States. USCIS said this guidance applies equally to all F/M students regardless of the program of study, and the 18-month period is valid for English as a Second Language (ESL) students as well.

ACICS-accredited schools will be unable to issue program extensions, and students will only be allowed to finish their current session if the ACICS-accredited school voluntarily withdraws its certification or if it is withdrawn by SEVP. If a student’s ACICS-accredited school is able to provide evidence of an ED-recognized accrediting agency or evidence in lieu of accreditation within the allotted time frame, the student may remain at the school to complete his or her

Students whose Forms I-20 have a DSO recommendation date before December 12, 2016, are not affected.

The USCIS announcement is at https://www.uscis.gov/news/alerts/certain-students-applying-english-language-study-and-24-month-stem-opt-extension-programs-affected-acics-loss-accreditation. More information about the loss of accreditation is at https://www.ice.gov/sevis/acics-loss-accreditation-recognition.

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  1. July Visa Bulletin Notes Oversubscription of Employment-Based Green Card Categories for China EB-3 and India EB-4 Categories

The Department of State’s Visa Bulletin for the month of July 2017 includes the following information:

CHINA Employment-based Third (E3) preference category: Readers were advised in item F of the June Visa Bulletin number 6, that it would be necessary to impose a date no later than August. The continued high level of demand for E3 numbers for USCIS adjustment of status applicants has required the establishment of a date for July. This has been done in an attempt to hold number use within the China E3 annual limit. The China E3 date will return to October 1, 2014 for October, the first month of fiscal year 2018.

INDIA Employment-based Fourth (E4) AND Certain Religious Workers (SR) preference categories: As readers were advised in the June Visa Bulletin number 6, there has been extremely high demand in the E4 and SR categories. Pursuant to the Immigration and Nationality Act, it has been necessary to impose E4 and SR Final Action Dates for India, which has reached its per-country limit. This action will allow the Department to hold worldwide number use within the maximum allowed under the FY-2017 annual limits.

The date for these preferences will once again become CURRENT for October, the first month of fiscal year 2018.

The July 2017 Visa Bulletin is at https://travel.state.gov/content/visas/en/law-and-policy/bulletin/2017/visa-bulletin-for-july-2017.html.

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  1. Pro Bono: DACA Recipient Can Stay, Work in United States for Now

Kuck Immigration Partners announced that the U.S. District Court for the Northern District of Georgia in Atlanta recently preliminarily enjoined U.S. Citizenship and Immigration Services’ (USCIS) decision to terminate Deferred Action for Childhood Arrivals (DACA) status and renewal, and employment authorization, for a Mexican person living and working in the United States, Jessica M. Colotl Coyotl. The court ordered USCIS to reconsider her DACA termination and readjudicate her renewal application “in a manner consistent with the Department of Homeland Security’s Standard Operating Procedures and this Order.” The court reinstated her work authorization pending readjudication of the renewal application and reconsideration of termination of DACA. The court said this order would remain effective until a further order from the same court, “which will issue only after Defendants have submitted sufficient proof that they have followed all relevant standard operating procedures regarding the adjudication of Plaintiff’s renewal application and any termination of Plaintiff’s DACA status.”

Ms. Colotl is 28 and has lived continuously in the United States since she was 11. She works at Kuck Immigration Partners as a paralegal and aspires to attend law school and become an immigration lawyer. The Kuck firm represented Ms. Colotl pro bono. The decision is at https://www.dropbox.com/s/016oyab4nyrq26l/TRO%20Order_Colotl.pdf?dl=0. A related video is at https://www.youtube.com/watch?v=84UIJon6HuI&app=desktop.

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  1. Firm In the News…

David Isaacson published The “politically correct version”: What Donald Trump’s Recent Tweet and Previous Use of the Term “Politically Correct” Tell Us About  His Revised Executive Order  on June 5, 2017.

Cyrus D. Mehta published Trump’s Tweet On “Extreme Vetting” May Have Opened the Door to a Court Challenge  on June 12, 2017. 

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June 2017 Global Immigration Update

Feature Article:

EFFECTS OF INCREASED ENFORCEMENT, SECURITY, NATIONALISM ON IMMIGRATION LAW: AN OVERVIEW – This article provides an overview of recent developments in several countries with respect to increases in enforcement, security measures, and nationalism.

Country Updates:

AUSTRALIA – This article summarizes significant changes to the 457 visa system that will replace the current 457 visa by March 2018. Important changes have already been implemented. The changes occurred without warning.

ITALY – Citizenship reform will be discussed in the Senate in June.

RUSSIA – Rules of address registration have been issued for the FIFA World Cup 2018 and the FIFA Confederation Cup 2017. Also, restrictions have been lifted for Turkish nationals traveling to Russia for tourism, business, or work purposes.rticle

Feature Article:

EFFECTS OF INCREASED ENFORCEMENT, SECURITY, NATIONALISM ON IMMIGRATION LAW: AN OVERVIEW

This article provides an overview of recent developments in several countries with respect to increases in enforcement, security measures, and nationalism.

Canada

The election of Donald J. Trump as the 45th President of the United States and the hostile political climate that has ensued in relation to immigration issues has had a significant impact on Canadian immigration. The initial enforcement of President Trump’s Executive Order, “Protecting the Nation from Foreign Terrorist Entry into the United States,” has significantly affected the seven countries named in the ban. Many citizens of these countries living in the United States, fearful for their future, have turned to Canada as an alternative. Canadian immigration lawyers have witnessed an increase in the interest of highly skilled individuals living and working in the United States in relocating to Canada.

The interest in Canada has also increased due to the temporary pause in the issuance of H-1B visas in the United States, effective April 3, 2017. This is in stark contrast with the recent commitment of Immigration, Refugees and Citizenship Canada (IRCC) to faster processing times for work permits for highly skilled workers. It remains to be seen whether Canada will seize this opportunity to attract more foreign talent. It is interesting to note that this political climate in the United States coincides with Canada’s Express Entry selection system inviting the highest number of candidates to apply for Canadian permanent residence since the program began on January 1, 2015.

President Trump’s election has also been a trigger for individuals to cross the border into Canada to make refugee claims. In light of the Safe Third Country Agreement between Canada and the United States, which stipulates that individuals must make a refugee claim in the first country in which they land, many individuals in the United States have been illegally crossing the border to avoid being caught under the agreement (which only applies at official ports of entry). Although the exact numbers of individuals making refugee claims in Canada is not known, the increase is significant and has captured the attention of news outlets across Canada. Available statistics indicate that the number of asylum seekers intercepted at the border in the first two months of 2017 is equal to approximately half of the total number of asylum seekers intercepted in all of 2016. As the weather warms up in Canada, it is expected that even more individuals will be making their way to Canada, thus putting more and more pressure on Canadian Border Service Agency officers to monitor borders and guide asylum seekers in making refugee claims.

Italy

On April 12, 2017, the Italian Parliament approved measures to accelerate asylum procedures, boost repatriation of undocumented migrants, and speed up deportations of those whose asylum requests have been rejected.

The Law Decree 17 February 2017, n. 13, signed into law on April 12 (the so-called Minniti-Orlando immigration law, named after its promoters), introduces several new provisions designed to streamline the processing of asylum requests as well as the deportations of those whose requests are rejected.

Under the new rules:

  • One of the two levels in the Italian court system to which asylum seekers can currently appeal in case of rejection is cancelled, and the deadline for submitting such a request is set to 1 month. As a result, an asylum ruling can now be appealed only once instead of twice. However, the right to appeal to Italy’s Supreme Court of Cassation (Corte Suprema di Cassazione) remains in place. Twenty-six new sections in courts across the country are created, specialized in immigration.
  • Two hundred and fifty people are to be recruited in the next two years to work on public committees specialized in dealing with asylum requests, with the purpose of strengthening the committees assessing the applications and ensuring faster processing times.
  • Asylum seekers hosted in reception centers will be registered as residents with the local municipalities and may choose to take part in volunteer or community service work.
  • Identification and expulsion centers (Centri di Identificazione ed Espulsione [CIE]) across Italy are increased in number and become “holding centres for repatriation” (Centri di permanenza per il rimpatrio [CPR]), each with a capacity not exceeding 150 people, with a total of 1,600 persons, located near major transport infrastructures.
  • Summary judgment for expulsion measures is directed to those considered a threat to public health or security and for prevention of terrorism.
  • Illegal immigration is countered with an electronic information system (Sistema Informativo Automatizzato [SIA], connected with the Schengen Information System).
  • Repatriations will occur faster due to cooperation with home countries through bilateral agreements.United StatesOnce a person is issued a visa or is traveling without a visa under the U.S. Electronic System for Travel Authorization (ESTA) program, U.S. Customs and Border Protection (CBP) has been reported to have increased scrutiny and raised the usual lines of questioning, specifically for business travelers and those entering on U.S. work visas. Travelers under the Visa Waiver Program should be prepared for questioning if a CBP immigration inspector determines that they have not been previously interviewed and sufficiently vetted before traveling.The “Hire American” portion of the order calls on the U.S. Secretaries of State, Labor, and Homeland Security and the Attorney General to “propose new rules and issue new guidance to supersede or revise previous rules and guidance if appropriate, to protect the interests of U.S. workers in the administration of our immigration system, including through the prevention of fraud or abuse.”In addition to directing agencies to consider changes in the H-1B lottery system, the Executive Order also calls for rigorous enforcement of U.S. immigration laws. Immigration attorneys have already seen an increase in the rate of requests for further evidence issued by U.S. Citizenship & Immigration Services (USCIS). Such requests may challenge the nature of the position offered—for example, whether it is a “specialty occupation” that normally requires a bachelor’s degree or higher in a specific specialty field—and question the individual’s qualifications for employment in the specialty field. Specific areas of scrutiny include entry-level computer programmers and analysts, as well as staffing companies and foreign workers involved in “third party placement,” which is when the usual place of activity is at a client site rather than the employer’s premises. This trend is likely to continue as USCIS and other agencies move forward in implementation of the new administration’s enforcement-driven policies.
  • Specifically, the agencies are directed to “suggest reforms to help ensure that H-1B Specialty Occupation Nonimmigrant Visas are awarded to the most-skilled or highest-paid petition beneficiaries.”
  • Also, President Trump signed the “Buy American and Hire American” Executive Order on April 18, 2017. The order sets forth his administration’s policy to “maximize…the use of goods, products, and materials produced in the United States” and to “rigorously enforce and administer the laws governing entry into the United States of workers from abroad.”
  • Scrutiny has increased at U.S. consulates and ports of entry. Following the injunction on enforcement of President Trump’s revised travel ban, U.S. Secretary of State Rex Tillerson issued diplomatic cables on March 17, 2017, directing all U.S. consular posts to increase scrutiny of visa applications and applicants for security threats. U.S. consular officers are expected to ask more detailed questions about applicants’ backgrounds. Consular officers also must refer applicants to the Fraud Prevention Unit for mandatory social media history checks if they were present in an area when it was controlled by the “Islamic State” (ISIS) or if the officer determines that an applicant may have ties to ISIS or other terrorist groups. This directive has caused a slowdown in visa issuance and an increase in visa denials.
  • The new provisions do not apply to unaccompanied minor migrants for whom a specific law was recently approved (Law 7 April 2017, n. 47). That law introduces a series of provisions to ensure comprehensive protection for unaccompanied foreign children by means of an effective system guaranteeing legal and health assistance, accurate age assessment, standards for reception centers and child facilities, and support for integration of children.

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Country Updates:

AUSTRALIA

This article summarizes significant changes to the 457 visa system that will replace the current 457 visa by March 2018. Important changes have already been implemented. The changes occurred without warning.

On April 18, 2017, Australia’s Prime Minister, Malcolm Turnbull, announced major changes to the Temporary Residence Subclass 457 program. The changes will also affect the Employer Nomination Scheme (ENS) permanent residence visa program for skilled workers.

The 457 Visa will be phased out and replaced with a Temporary Skills Shortage (TSS) visa, which will comprise two streams: Short-Term (2 years) and Medium-Term (4 years).

With immediate effect, the Consolidated Sponsored Occupation List (CSOL) will be renamed as the Short-Term Skill Occupations List (STSOL), which will be reviewed every 6 months.

Over 200 occupations have been removed from that list. As the change is immediate, all 457 applications currently being processed related to occupations that have been removed from the list will not be approved and applicants will be afforded the opportunity to withdraw the applications and receive a refund of the filing fee.

Conversely, any applications filed on or after April 19, 2017, must nominate occupations on the STSOL or on what is known as the Medium and Long-Term Strategic Skills List (MLTSSL).

Visas granted on or after April 18, 2017, relating to nominations of occupations on the STSOL will only be granted for a two-year period. After two years, a further and final period of two years may be sought. As of March 2018, visa holders can only be sponsored for a permanent visa if they are nominated for a position appearing on the MLTSSL.

457 Visa applicants granted visas on or after April 18, 2017, and holding MLTSSL positions may receive a four-year visa. Holders of the four-year visa will be able to be nominated for a permanent visa after a three-year period of employment with the sponsor.

Also as of March 2018, visa applicants will need to have at least two years of work experience prior to applying for a 457 visa before any nominated position. Apparently those nominated for STSOL positions will be required to demonstrate an intention to remain temporarily only in Australia.

Effective immediately are caveats that add layers of requirements on work experience or are occupation-specific. For example, in certain instances, employers may only nominate certain occupations if the employer is able to demonstrate a turnover of a $1 million per annum and a workforce of not less than five.

Below is a timeline of these changes.

April 19, 2017

  • 216 occupations removed from CSOL with 24 occupations restricted to regional Australia.
  • CSOL re-named as STSOL and MLTSSL introduced.
  • Visa applicants nominated for MLTSSL occupations to receive a four-year visa while those nominated for STSOL will be limited to two years. A second two-year visa may be applied for at the end of the first term.
  • At present persons nominated for permanent visas under the direct stream of the Subclass 186 (ENS) may be nominated for a position from either list. This will cease in March 2018.

July 1, 2017

  • Occupation Lists to be reviewed.
  • The current English-language salary exemption threshold of $96,400.00 will be removed. This means that all 457 Visa applicants will be required to have the equivalent of IELTS Level 5. It is assumed that the current country-of-origin exemption will apply.
  • Training benchmarks will be clarified.
  • Police Clearance Certificates will become mandatory.
  • Regarding ENS, IELTS level 6 in each component is required.
  • Also regarding ENS, a maximum age requirement of 45 (time of application) will apply to Direct Entry Stream applicants. The current 50-year age limit will continue for Temporary Transition applicants.

December 31, 2017

  • The Department of Immigration and Boarder Protection will begin collecting Tax File Numbers for all 457 holders and other employer-sponsored migrants. These data will be matched with Australian Tax Office records to check that 457 visa holders are not underpaid.
  • The Department will publish details of sponsors sanctioned for failing sponsorship obligations.

March 2018

  • The 457 Visa will be abolished and replaced by the TSS Visa, which will have two streams: the Short-Term Stream of up to two years and a Medium-Term Stream of up to four years.
  • The Short-Term Stream (STS) will include the following criteria:Renewal: Onshore renewal once only.

(i)Renewal: Onshore renewal once only.

(ii)   Occupations:

(1)For non-regional Australia – STSOL will apply.

(2)Additional occupations available for regional employers.

(iii) English language requirement: Minimum IELTS of 5 with a minimum of 4.5 in each component.

(iv) Genuine entry: A genuine temporary entrant requirement.

  • The Medium-Term Stream (MTS) will include the following criteria:

(i) Renewal: May be renewed onshore; pathway to permanent residence available after three years.

(ii)   Occupation:

(1) MLTSSL applies with additional occupations for regional employers.

(ii) English language requirement: IELTS Level 5 with 5 in each test component.

  • Eligibility criteria for both streams:

(i) Work experience of at least two years.

(ii)Labor market testing mandatory subject to international trade obligations.

(iii) Salaries to be paid must meet market rate and the Temporary Skill Migration Income Threshold (currently $53,900.00).

(iv)  Character clearance certificates are required.

(v) Introduction of a non-discretionary workforce test, details of which are unknown.

(vi) Training requirement to be strengthened.

  • ENS March changes:

(i) MTSSL only applies with additional occupations available for regional Australia;

(ii) Salaries must meet Temporary Skilled Migration Income Threshold and market rate;

(iii) PR period extended from two to three years;

(iv) Must have three years of relevant work experience;

(v) Must be under 45 years of age at time of application;

(vi) Training requirements are strengthened.

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ITALY

Citizenship reform will be discussed in the Senate in June.

Further discussion of the reform of Italian citizenship law is scheduled for June 15, 2017, in the Senate. If approved, the bill (N. 2092) will bring a twofold change to the current legislation: significant changes to the current jus soli law, and the introduction of a new route to citizenship, jus culturae.

Possible changes to the current jus soli route (birthright citizenship) include:

  • Foreign children born in Italy would be considered Italian by birth if at least one of their parents has acquired permanent residence status (i.e., is in possession of a permanent EC residence permit if non-EU or, for EU citizens, has acquired permanent right of residence);
  • Foreign children born in Italy and who have resided legally without interruption until reaching 18 years of age would now have 2 years instead of 1 to apply for citizenship.

The new jus culturae route would include:

  • Foreign children born in Italy or who have arrived by the age of 12 may acquire the right to citizenship after at least 5 years of education in Italy.
  • Foreign children who arrived in Italy before the age of 18 could apply for citizenship if they have resided regularly in Italy for at least 6 years and have successfully completed a cycle of education.

Italian citizenship is currently regulated by Law No. 91/1992. In October 2015, the Chamber of Deputies approved the reform bill, including a moderate version of the jus soli and jus culturae laws. Since then, the bill had been discussed in the Senate but an agreement had not been reached between the parties.

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RUSSIA

Rules of address registration have been issued for the FIFA World Cup 2018 and the FIFA Confederation Cup 2017. Also, restrictions have been lifted for Turkish nationals traveling to Russia for tourism, business, or work purposes.

In accordance with Presidential Order N. 202 of May 9, 2017, “On security measures during the World Cup FIFA 2018 and Confederation Cup FIFA 2017,” rules of address registration are subject to change. The Confederation Cup began June 1 and will run until July 12, 2017, in Moscow, St. Petersburg, Kazan, and Sochi. The World Cup will be held from May 25 until July 25, 2018, in Moscow, St. Petersburg, Volgograd, Ekaterinburg, Kazan, Kaliningrad, Nizhni Novgorod, Samara, Rostov on Don, Saransk, and Sochi.

The changes will affect both Russian and foreign citizens. Russian citizens who have arrived in these cities during the tournaments are expected to apply within three calendar days of arrival to register their arrival at the place of temporary residence.

Foreign nationals who have entered Russia during these events should register their addresses within one calendar (not working) day of the arrival date. Foreign nationals arriving in Russia during a weekend or public holiday should register with immigration authorities within 24 hours of arrival. Immigration authorities will be working during weekends and public holidays.

The new address registration rules apply to all foreign nationals regardless of the purpose of the visit, including for tourism, business, or work. The new rules are applicable only during the tournaments in the cities noted above.

The only exception to the new rules applies to Russian citizens and foreign nationals who are participants in the Confederation Cup and World Cup, FIFA official representatives and related organizations, and national football (soccer) associations that are included on the FIFA accredited list.

Also, in accordance with Presidential Order N. 224 of May 31, 2017, “On termination of particular economic measures related to Turkish Republic,” Turkish nationals may travel to Russia for tourism, business, or work purposes. The limitations in place since November 2015 have been terminated.

The Order comes into force as of 31st of May 2017.

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New Publications and Items of Interes

June 2017 Immigration Update

Headlines:

  1. Fourth Circuit Upholds Rejection of Trump Travel Ban – The U.S. Court of Appeals for the Fourth Circuit has upheld a nationwide preliminary injunction rejecting a substantial portion of the Trump administration’s revised executive order barring entry into the United States of people from certain countries.
  2. DHS Extends TPS Designation for Haiti –DHS has extended the temporary protected status designation for Haiti for 6 months, from July 23, 2017, through January 22, 2018.
  3. USCIS Reaches CW-1 Cap for FY 2018 – USCIS announced that as of May 25, 2017, it has received a sufficient number of petitions to reach the numerical limit of workers who may be issued CNMI-Only Transitional Worker (CW-1) visas or otherwise provided with CW-1 status for FY 2018. Although the FY 2018 cap has not been set, it is required by statute to be less than the 12,998 workers set for FY 2017.
  4. Recent Fraud Investigations Led to Convictions, USCIS Announced – USCIS assisted in several recent investigations leading to convictions in immigration fraud cases.
  5. ABIL Global: Australia – This article summarizes significant changes to the 457 visa system that will replace the current 457 visa by March 2018. Important changes have already been implemented. The changes occurred without warning.
  6. Firm In The News…

Details:

  1. Fourth Circuit Upholds Rejection of Trump Travel Ban

The U.S. Court of Appeals for the Fourth Circuit has upheld a nationwide preliminary injunction rejecting a substantial portion of the Trump administration’s revised executive order barring entry into the United States of people from certain countries.

Chief Judge Roger Gregory noted that the question for the court, distilled to its essence, was whether the Constitution protected plaintiffs’ right to challenge the executive order, which “in text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination.” He noted that “[s]urely the Establishment Clause of the First Amendment yet stands as an untiring sentinel for the protection of one of our most cherished founding principles—that government shall not establish any religious orthodoxy, or favor or disfavor one religion over another.” He said that Congress granted the President broad power to deny entry to the United States, but that this power is not absolute. “It cannot go unchecked when, as here the President wields it through an executive edict that stands to cause irreparable harm to individuals across this nation.”

Among other things, the court took into account not just the text of the executive order but also the context of statements made by President Trump both before and after his election and assumption of office. For example, the court noted that on December 7, 2015, then-candidate Trump published a “Statement on Preventing Muslim Immigration” on his website that proposed “a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.” Among other things, the statement noted “great hatred toward Americans by large segments of the Muslim population.” The court noted that this statement remained on President Trump’s campaign website at least until February 12, 2017, and was highlighted on Twitter. On March 9, 2016, then-candidate Trump said, “I think Islam hates us,” and renewed his call for a ban on Muslim immigration in a March 22, 2016, interview. And when asked about a tweet that said that calls to ban Muslims from entering the United States were offensive and unconstitutional, then-candidate Trump responded, “So you call it territories. OK? We’re gonna do territories.” In an interview a week later, he said, “I’m looking now at territories. People were so upset when I used the word Muslim. Oh, you can’t use the word Muslim. Remember this. And I’m okay with that, because I’m talking territory instead of Muslim.” With respect to people revering the part of the Constitution that guarantees religious freedom, he said, “I view it differently.”

The court said, among other things, that it was “unmoved by the Government’s rote invocation of harm to ‘national security interests’ as the silver bullet that defeats all other asserted injuries.” Citing a 1967 case, United States v. Robel, the court noted that implicit in the term “national defense” is “the notion of defending those values and ideals which set this Nation apart….It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties…which makes the defense of the Nation worthwhile.” National security “may be the most compelling of government interests,” the court observed, “but this does not mean it will always tip the balance of the equities in favor of the government.” The court noted that unconditional deference to a government agent’s invocation of “emergency” has a “lamentable place in our history” and that the government’s asserted national security interest appeared to be a “post hoc, secondary justification for an executive action rooted in religious animus and intended to bar Muslims from this country.” The court said it remained unconvinced that the relevant section of the executive order “has more to do with national security than it does with effectuating the President’s promised Muslim ban.”

Circuit Judge Wynn, concurring, noted that “[i]nvidious discrimination that is shrouded in layers of legality is no less an insult to our Constitution than naked invidious discrimination.” In this case, he said, the invidious discrimination is “layered under the guise of a President’s claim of unfettered congressionally delegated authority to control immigration and his proclamation that national security requires his exercise of that authority to deny entry to a class of aliens defined solely by their national origin.” Laid bare, he said, “this Executive Order is no more than what the President promised before and after his election: naked invidious discrimination against Muslims,” which he said contravenes the authority Congress delegated to the President under the Immigration and Nationality Act, and is unconstitutional under the Establishment Clause.

Several judges dissented. The government stated that it intends to appeal to the Supreme Court.

The 205-page decision, including the dissents, is at http://coop.ca4.uscourts.gov/171351.P.pdf.

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  1. DHS Extends TPS Designation for Haiti

The Department of Homeland Security (DHS) has extended the temporary protected status (TPS) designation for Haiti for 6 months, from July 23, 2017, through January 22, 2018. Although Haiti has made significant progress in recovering from the January 2010 earthquake that prompted its designation, conditions in Haiti supporting its designation continue to be met, DHS said.

A worker who is a current beneficiary of Haiti’s designation for TPS and wants to use his or her Form I-766, Employment Authorization Document (EAD), as evidence of employment eligibility after it expires on July 22, 2017, must timely file application to renew that EAD by July 24, 2017. Timely filing automatically extends the validity of the expired EAD for 180 days, until January 18, 2018. (The Federal Register notice does not automatically extend the validity of the EAD for these beneficiaries and is not an acceptable document for Form I-9 Employment Eligibility Verification purposes.)

USCIS will then provide a Form I-797C, Notice of Action. If the EAD and Form I-797C both contain either category code “A-12” or “C-19,” this combination is considered a List A document for I-9 purposes. Employers will need to reverify employment authorization for these employees by January 18, 2018.

DHS encourages Haitian TPS beneficiaries during this 6-month extension “to prepare for their return to Haiti in the event Haiti’s designation is not extended again, including requesting updated travel documents from the government of Haiti.” At least 60 days before January 22, 2018, DHS Secretary John Kelly will re-evaluate the designation for Haiti and will determine whether another extension, a re-designation, or a termination is warranted.

Additional information, including where to file, is at https://www.uscis.gov/humanitarian/temporary-protected-status/temporary-protected-status-designated-country-haiti.

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  1. USCIS Reaches CW-1 Cap for FY 2018

U.S. Citizenship and Immigration Services (USCIS) announced that as of May 25, 2017, it had received a sufficient number of petitions to reach the numerical limit (cap) of workers who may be issued CNMI-Only Transitional Worker (CW-1) visas or otherwise provided with CW-1 status for fiscal year (FY) 2018. Although the FY 2018 cap has not been set, it is required by statute to be less than the 12,998 workers set for FY 2017.

USCIS said it will issue subsequent guidance when the FY 2018 cap is set and when the agency is able to announce the final receipt date. Because the final receipt date will depend on the FY 2018 cap, it is also possible that USCIS will not accept some petitions it received on or before May 25, 2017.

The agency noted that it will reject CW-1 petitions received on or after May 26, 2017, that request an employment start date before October 1, 2018. This includes CW-1 petitions for extensions of stay that are subject to the CW-1 cap. The filing fees will be returned with any rejected CW-1 petition.

If USCIS rejects an extension petition, the beneficiaries listed on that petition are not permitted to work beyond the validity period of the previously approved petition, USCIS noted. Therefore, affected beneficiaries, including any CW-2 derivative family members of a CW-1 nonimmigrant, must depart the Commonwealth of the Northern Mariana Islands (CNMI) within 10 days after the CW-1 validity period expires, unless they have some other authorization to remain under U.S. immigration law.

New employment petitions and extension-of-stay petitions are generally subject to the CW-1 cap.

All CW-1 workers are subject to the cap unless the worker has already been counted toward the cap in the same fiscal year. The CW-1 cap does not apply to CW-2 derivative family members.

USCIS encourages CW-1 employers to file a petition for a CW-1 nonimmigrant worker up to 6 months in advance of the requested employment start date, and to file as early as possible within that time frame. USCIS noted, however, that it will reject a petition if it is filed more than 6 months in advance.

For more information, see https://www.uscis.gov/working-united-states/temporary-workers/cw-1-cnmi-only-transitional-worker. The petition is at https://www.uscis.gov/i-129cw.

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  1. Recent Fraud Investigations Led to Convictions, USCIS Announced

U.S. Citizenship and Immigration Services (USCIS) assisted in several recent investigations leading to convictions in immigration fraud cases.

In one case, USCIS assisted in an investigation that led to a federal jury finding Jason Shiao guilty in a marriage fraud scheme. Mr. Shiao, of Santa Fe Springs, California, posed as an attorney in an elaborate scheme in which at least 87 foreign nationals, mostly Chinese citizens, paid up to $50,000 to enter into sham marriages.

As part of the scheme, according to USCIS, Mr. Shiao falsely claimed to be an attorney, paid U.S. citizens up to $15,000 to participate in the scheme, introduced would-be immigrants seeking benefits to U.S. citizens to facilitate the sham marriages, instructed his clients to pose for wedding photographs, and told clients to lie to USCIS officials. The defendants went to considerable lengths to make the fake marriages appear real, USCIS said. Mr. Shiao and his daughter prepared documentation that was filed with USCIS to bolster the validity of the fraudulent marriages, including staged photographs of “wedding ceremonies” and bogus tax returns, life insurance policies, joint bank account information, and apartment lease applications.

Mr. Shiao was sentenced to two years in prison. Mr. Shiao’s daughter was sentenced to six months in prison. A third defendant was transferred to the Eastern District of Pennsylvania, where he is also being prosecuted for drug trafficking charges based on crimes allegedly committed while on pre-trial release in the immigration fraud case.

In another case, USCIS assisted in an investigation that led to sentencing of Rosa Cingari to 12 years and seven months in federal prison and Domenico Cingari to eight years and one month in federal prison for conspiracy, making false statements in immigration applications and petitions, and mail fraud. The court also ordered the Cingaris to forfeit real property that was used to facilitate the offenses. As part of their sentence, the court also entered a money judgment in the amount of $740,880, the proceeds of the charged criminal conduct.

According to evidence presented at trial, the Cingaris owned and operated R.E.P.C. Accounting and Translations out of their home on West Park Street in Lakeland, Florida. They assisted undocumented people in obtaining Florida driver’s licenses by filing fraudulent immigration documents. Specifically, they filed Forms I-589, Application for Asylum and Withholding of Removal; I-130, Petition for Alien Relative; and I-765, Work Authorization. Most of the applications and petitions submitted to USCIS by the Cingaris contained materially false information, USCIS said. The Cingaris filed the fraudulent immigration documents to obtain USCIS I-797C Notices of Action. The Cingaris put their mailing address on all of the fraudulent forms so that USCIS would mail the Notices of Action to their business. They then sold the Notices of Action to their clients. The Cingaris charged their clients between $500 and $1,300 each for the fraudulent immigration applications.

More information on these cases is at https://www.uscis.gov/news/news-releases/uscis-assists-investigation-leading-conviction-imposter-attorney-marriage-fraud-scheme-0 and https://www.uscis.gov/news/news-releases/uscis-efforts-investigating-large-scale-immigration-fraud-leads-sentencing.

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  1. ABIL Global: Australia

This article summarizes significant changes to the 457 visa system that will replace the current 457 visa by March 2018. Important changes have already been implemented. The changes occurred without warning.

On April 18, 2017, Australia’s Prime Minister, Malcolm Turnbull, announced major changes to the Temporary Residence Subclass 457 program. The changes will also affect the Employer Nomination Scheme (ENS) permanent residence visa program for skilled workers.

The 457 Visa will be phased out and replaced with a Temporary Skills Shortage (TSS) visa, which will comprise two streams: Short-Term (2 years) and Medium-Term (4 years).

With immediate effect, the Consolidated Sponsored Occupation List (CSOL) will be renamed as the Short-Term Skill Occupations List (STSOL), which will be reviewed every 6 months.

Over 200 occupations have been removed from that list. As the change is immediate, all 457 applications currently being processed related to occupations that have been removed from the list will not be approved and applicants will be afforded the opportunity to withdraw the applications and receive a refund of the filing fee.

Conversely, any applications filed on or after April 19, 2017, must nominate occupations on the STSOL or on what is known as the Medium and Long-Term Strategic Skills List (MLTSSL).

Visas granted on or after April 18, 2017, relating to nominations of occupations on the STSOL will only be granted for a two-year period. After two years, a further and final period of two years may be sought. As of March 2018, visa holders can only be sponsored for a permanent visa if they are nominated for a position appearing on the MLTSSL.

457 Visa applicants granted visas on or after April 18, 2017, and holding MLTSSL positions may receive a four-year visa. Holders of the four-year visa will be able to be nominated for a permanent visa after a three-year period of employment with the sponsor.

Also as of March 2018, visa applicants will need to have at least two years of work experience prior to applying for a 457 visa before any nominated position. Apparently those nominated for STSOL positions will be required to demonstrate an intention to remain temporarily only in Australia.

Effective immediately are caveats that add layers of requirements on work experience or are occupation-specific. For example, in certain instances, employers may only nominate certain occupations if the employer is able to demonstrate a turnover of a $1 million per annum and a workforce of at least five.

Below is a timeline of these changes.

April 19, 2017

  • 216 occupations removed from CSOL with 24 occupations restricted to regional Australia.
  • CSOL re-named as STSOL and MLTSSL introduced.
  • Visa applicants nominated for MLTSSL occupations to receive a four-year visa while those nominated for STSOL will be limited to two years. A second two-year visa may be applied for at the end of the first term.
  • At present persons nominated for permanent visas under the direct stream of the Subclass 186 (ENS) may be nominated for a position from either list. This will cease in March 2018.

July 1, 2017

  • Occupation Lists to be reviewed.
  • The current English-language salary exemption threshold of $96,400.00 will be removed. This means that all 457 Visa applicants will be required to have the equivalent of IELTS Level 5. It is assumed that the current country-of-origin exemption will apply.
  • Training benchmarks will be clarified.
  • Police Clearance Certificates will become mandatory.
  • Regarding ENS, IELTS level 6 in each component is required.
  • Also regarding ENS, a maximum age requirement of 45 (time of application) will apply to Direct Entry Stream applicants. The current 50-year age limit will continue for Temporary Transition applicants.

December 31, 2017

  • The Department of Immigration and Boarder Protection will begin collecting Tax File Numbers for all 457 holders and other employer-sponsored migrants. These data will be matched with Australian Tax Office records to check that 457 visa holders are not underpaid.
  • The Department will publish details of sponsors sanctioned for failing sponsorship obligations.

March 2018

  • The 457 Visa will be abolished and replaced by the TSS Visa, which will have two streams: the Short-Term Stream of up to two years and a Medium-Term Stream of up to four years.
  • The Short-Term Stream (STS) will include the following criteria:

(i) Renewal: Onshore renewal once only.

(ii) Occupations:

(1) For non-regional Australia – STSOL will apply.

(2) Additional occupations available for regional employers.

(iii) English language requirement: Minimum IELTS of 5 with a minimum of 4.5 in each component.

(iv) Genuine entry: A genuine temporary entrant requirement.

  • The Medium-Term Stream (MTS) will include the following criteria:

(i) Renewal: May be renewed onshore; pathway to permanent residence available after three years.

(ii) Occupation:

(1) MLTSSL applies with additional occupations for regional employers.

(iii) English language requirement: IELTS Level 5 with 5 in each test component.

  • Eligibility criteria for both streams:
  1. Work experience of at least two years.
  2. Labor market testing mandatory subject to international trade obligations.
  3. Salaries to be paid must meet market rate and the Temporary Skill Migration Income Threshold (currently $53,900.00).
  4. Character clearance certificates are required.
  5. Introduction of a non-discretionary workforce test, details of which are unknown.
  6. Training requirement to be strengthened.
  • ENS March changes:
  1. MTSSL only applies with additional occupations available for regional Australia;
  2. Salaries must meet Temporary Skilled Migration Income Threshold and market rate;
  3. PR period extended from two to three years;
  4. Must have three years of relevant work experience;
  5. Must be under 45 years of age at time of application;
  6. Training requirements are strengthened.

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  1. Firm In The News

The latest edition of Chambers & Partners USA 2017 has ranked Cyrus D. Mehta & Partners PLLC for immigration as a Band 2 law firm under Immigration in New York. Cyrus D. Mehta has been ranked as a Star Individual. David A. Isaacson and Cora-Ann V. Pestaina have also been ranked as Up and Coming. https://www.chambersandpartners.com/12806/31/editorial/5/1#117776_editorial. Chambers Nationwide has also ranked Cyrus D. Mehta as a Band 1 lawyer for immigration. https://www.chambersandpartners.com/12788/31/editorial/5/1

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Mid-May 2017 Immigration Update

Headlines:

  1. Spending Bill Extends EB-5 Investor Visa Program to September 30; No Funding for Wall – The Consolidated Appropriations Act of 2017 extends the EB-5 immigrant investor visa program through September 30, 2017. The legislation also provides a large border-security funding increase, but no funding for a border wall.
  2. USCIS Completes Data Entry of FY 2018 H-1B Cap-Subject Petitions – USCIS has completed data entry of all fiscal year 2018 H-1B cap-subject petitions selected in a computer-generated random process and has begun returning all H-1B cap-subject petitions that were not selected.
  3. DACA Recipient Files Suit Over Revoked Status – Jessica Colotl, a DACA recipient whose case has received publicity over the years, has had her DACA status revoked. Her attorney has filed a motion requesting a federal judge in Atlanta, Georgia, to reinstate her DACA protection.
  4. USCIS Implements New Interpreter Policy, Form – The guidance applies to interviews conducted at domestic field offices except in cases where USCIS provides interpreters or has other policies.
  5. State Dept. Announces Continued High Demand for Visa Numbers in Several Employment-Based Categories – The Department of State’s Visa Bulletin for the month of June 2017 notes that continued high demand is resulting in cut-off dates being established in several categories.
  6. IT Issues Hamper Tracking of Visa Overstays, DHS OIG Says – It can take months for ICE to determine a visa-holder’s status and whether that person may pose a national security threat, which contributes to a backlog of more than 1.2 million visa overstay cases.
  7. Firm In The News…

Details:

  1. Spending Bill Extends EB-5 Investor Visa Program to September 30; No Funding for Wall

The Consolidated Appropriations Act of 2017, passed by Congress and signed May 7, extends the EB-5 immigrant investor visa program through September 30, 2017. The legislation also provides a large border-security funding increase, among other things.

The spending bill was also notable for what it didn’t contain. For example, the bill did not include funding to begin construction of the border wall promised by President Trump.

Some observers believe that before that date, legislation could be enacted to change the EB-5 program, such as by raising the minimum investment amount, which currently is $500,000 in rural and high unemployment areas and $1 million elsewhere. The EB-5 program has received a lot of attention recently because of a particular EB-5 project in New Jersey being promoted by the Kushner Company. Jared Kushner, President Trump’s son-in-law and a senior advisor to the President, stepped down as chief executive of the Kushner Company in January and has sold stakes in several properties to help allay concerns about possible conflicts of interest.

A statement by President Trump on signing the legislation is at https://www.whitehouse.gov/the-press-office/2017/05/05/statement-president-donald-j-trump-signing-hr-244-law. For more on this case, see https://www.nytimes.com/2017/05/08/us/politics/kushner-china-visa-eb-5.html.

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  1. USCIS Completes Data Entry of FY 2018 H-1B Cap-Subject Petitions

U.S. Citizenship and Immigration Services (USCIS) announced on May 3, 2017, that it has completed data entry of all fiscal year 2018 H-1B cap-subject petitions selected in a computer-generated random process. USCIS said it has begun returning all H-1B cap-subject petitions that were not selected. Due to the high volume of filings, USCIS was unable to provide a definite time frame for returning these petitions. USCIS asked petitioners not to inquire about the status of submitted cap-subject petitions until they receive a receipt notice or an unselected petition is returned. USCIS will issue an announcement once all the unselected petitions have been returned.

Additionally, USCIS is transferring some Form I-129 H-1B cap-subject petitions from the Vermont Service Center to the California Service Center to balance the distribution of cap cases. USCIS will notify by mail those whose cases are transferred.

USCIS also reminded petitioners that it has temporarily suspended premium processing for all H-1B petitions, including cap-subject petitions, for up to six months.

The USCIS announcement is at https://www.uscis.gov/news/alerts/uscis-completes-data-entry-fiscal-year-2018-h-1b-cap-subject-petitions.

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3          DACA Recipient Files Suit Over Revoked Status

Jessica Colotl, a Deferred Action for Childhood Arrivals (DACA) recipient whose case has received publicity over the years, has had her DACA status revoked. Her attorney has filed a motion requesting a federal judge in Atlanta, Georgia, to reinstate her DACA protection.

Ms. Colotl’s parents brought her to the United States from Mexico when she was 11. She was granted DACA status in 2013, which was renewed last year. In the intervening years, her parents moved back to Mexico but she stayed in the United States, graduated from college, and has been working as a paralegal with Kuck Immigration Partners, LLC. Last year, she wanted to travel to Mexico to visit her ill mother, but since she had an outstanding removal order, she filed a motion to reopen and administratively close her removal proceedings. An immigration judge denied the request but the Board of Immigration Appeals found in her favor and sent the case back to the immigration judge to administratively close her case. However, the immigration judge asked the government for its position in writing; in a supplemental filing in March 2017, the government said her case shouldn’t be closed and she was a priority for removal under a February 2017 Department of Homeland Security memorandum due to her criminal history (she was pulled over on campus for a traffic violation and driving without a license in 2010 and was charged with a felony false statement to a law enforcement officer when her address given didn’t match the record. At that time, she was detained for 37 days).

Kuck Immigration Partners filed a complaint on May 9, 2017, in Atlanta for declaratory and injunctive relief. “Trump promised that DACA kids were fine. Nothing’s changed in Jessica’s case.…They are simply in bad faith punishing her for exercising her rights under the policies enacted by the government,” said Charles Kuck. Now 28, Ms. Colotl said in her lawsuit that the government is using her as “a test case to revoke DACA, exceeding its discretionary authority in an arbitrary and capricious manner.” Calling the government’s action “completely outrageous,” she said she “felt shock because I didn’t know this could happen.”

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  1. USCIS Implements New Interpreter Policy, Form

U.S. Citizenship and Immigration Services (USCIS) announced the May 1, 2017, implementation of a policy memorandum issued on January 17, 2017. The guidance applies to interviews conducted at domestic field offices except in cases where USCIS provides interpreters or has other policies, such as asylum and refugee interviews; credible fear and reasonable fear screening interviews; interviews to determine eligibility for relief under provisions of the Nicaraguan Adjustment and Central American Relief Act; and naturalization interviews, unless the interviewee qualifies for an exception to demonstrating adequate proficiency in reading, writing, and speaking English. The standards also do not apply to document translations or to interviews conducted at international field offices.

The guidance states that interpreters must be sufficiently fluent in both English and the interviewee’s language, able to interpret competently between English and the interviewee’s language, and able to interpret impartially and without bias. Those restricted from serving as interpreters include minors under age 18 (an exception for good cause may be granted for those age 14-17); attorneys and accredited representatives of the interviewee; and witnesses (unless an exception for good cause is granted). A witness is anyone who gives a personal account, orally or in writing, of something seen, heard, or experienced.

USCIS has introduced the new Form G-1256, Declaration for Interpreted USCIS Interview, as part of implementation of this guidance. Both the interviewee and the interpreter must sign the form at the beginning of the interview in the presence of a USCIS officer. The form includes a declaration stating that the interpreter must accurately, literally, and fully interpret for both the interviewee and interviewing officer, and requires the interpreter to agree not to disclose any personal information learned in the interview.

USCIS officers will receive training to implement the new policy.

The announcement is at https://www.uscis.gov/news/alerts/role-and-use-interpreters-domestic-field-office-interviews. The policy memorandum is at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2017/2017-17-1-RoleUseInterpreters-PM-602-0125-1.pdf. A related Web alert is at https://www.uscis.gov/news/alerts/role-and-use-interpreters-domestic-field-office-interviews.

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  1. State Dept. Announces Continued High Demand for Visa Numbers in Several Employment-Based Categories

The Department of State’s Visa Bulletin for the month of June 2017 notes, among other things:

  • Continued high level of demand for the China and India employment-based first preference (EB-1) categories has required the establishment of a cut-off date for June. The EB-1 date for these two countries will once again become Current for October, the first month of fiscal year 2018.
  • There has been an extremely large increase in China employment third preference applicant demand during the past month, due to the “downgrading” of status by applicants who had originally filed in the employment second preference. This has resulted in the third preference final action date being held for the month of June. Continued heavy demand for numbers will require a retrogression of this date no later than August.
  • There also is continued high demand in the India EB-4 and special religious worker categories, which is likely to result in the India EB-4 per-country limit being reached in June. Therefore, implementation of July EB-4 and special religious worker final action dates for India is expected. The India EB-4 and special religious worker dates should once again become Current for October.

The Visa Bulletin for June 2017 is at https://travel.state.gov/content/visas/en/law-and-policy/bulletin/2017/visa-bulletin-for-june-2017.html.

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  1. IT Issues Hamper Tracking of Visa Overstays, DHS OIG Says

The Department of Homeland Security’s (DHS) Office of Inspector General (OIG) recently found that U.S. Immigration and Customs Enforcement (ICE) relies on information technology (IT) systems that are “fragmented” and “ineffective,” lacking in integration and information-sharing capabilities. As a result, OIG said, ICE personnel are forced to “laboriously piece together vital information from up to 27 distinct DHS information systems and databases to accurately determine an individual’s overstay status.” It can take months for ICE to determine a visa-holder’s status and whether that person may pose a national security threat, OIG said, which contributes to a backlog of more than 1.2 million visa overstay cases.

Further complicating ICE’s efforts to track visa overstays is DHS’s lack of a comprehensive biometric exit system at U.S. ports of departure to capture information on nonimmigrant visitors. In the absence of such a system, OIG reported, ICE must rely on third-party departure data, such as commercial carrier passenger manifests, which do not include biometric land departure information reflecting those who cross the border on foot or using their own vehicles.

OIG made several recommendations to the DHS and ICE Chief Information Officers (CIOs) to improve information sharing, provide training and guidance, evaluate data reliability, and implement a biometric exit solution.

A related press release is at https://www.oig.dhs.gov/assets/pr/2017/oigpr-050417.pdf. The full report is at https://www.oig.dhs.gov/assets/Mgmt/2017/OIG-17-56-May17.pdf.

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  1.   Firm In the News

Cyrus D. Mehta authored the article Representation of the Joint Sponsor on an I-864 is Both Permissible and Prudent that was published in Bender’s Immigration Bulletin, May 1, 2017.

Cyrus D. Mehta was a Panelist on two panels – Ethics – Falsus in Uno and Family Immigration, at the Immigration Law Conference, organized by the Federal Bar Association, in Denver, CO, on May 12-13, 2017.

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