Mid-March 2017 Immigration Update

 Headlines

  1. President Trump Signs Revised ‘Travel Ban’ Executive Order; Federal District Court Blocks Ban Temporarily – President Donald Trump signed a revised “travel ban” executive order on March 6.
  2. USCIS To Suspend Premium Processing for H-1B Petitions Starting April 3 – The suspension may last up to 6 months.
  3. Have You Been Using E-Verify for More Than 10 Years? If So, Download Your Older Reports Now – USCIS must dispose of transaction records that are more than 10 years old in April 2017. Employers that have been using E-Verify for more than 10 years can download, through March 31, 2017, their Historic Records Reports. A Historic Records Report contains transaction records dated on or before December 31, 2006.
  4. USCIS Updates Report of Medical Exam and Vaccination Record – Beginning April 28, 2017, civil surgeons must use the 02/07/17 edition of Form I-693 (which shows an expiration date of 02/28/2019
  5. Firm In The News…..

Details:

  1. President Trump Signs Revised ‘Travel Ban’ Executive Order; Federal District Court Blocks Ban Temporarily

President Donald Trump signed a new “travel ban” executive order on March 6, 2017, effective March 16. The new order, which has been temporarily blocked, revokes a previous executive order signed on January 27, 2017, and reduces to six, from the previous seven, countries whose nationals are suspended from entry under a “temporary pause.” The order exempts permanent residents and valid visa holders as of certain dates and times, and provides for case-by-case discretionary waivers. The order also suspends refugee travel to the United States for 120 days for those not previously admitted, subject to waivers in certain circumstances. The new order includes explanations of President Trump’s rationale for the order’s provisions.

In late-breaking news, on March 15, a federal district court in Hawaii blocked the new executive order, granting a motion for a temporary restraining order. The court’s injunction applies nationwide. The government is expected to appeal, but in the meantime the executive order cannot take effect as planned. The federal court held that the plaintiffs had a strong case that the President’s March 6 executive order, like his earlier order, violated the Constitution’s First Amendment freedom of religion clause by disfavoring Muslims. In reaching that conclusion, the court looked beyond the text of the executive order to statements made by President Trump and his advisors in favor of a Muslim immigration ban.

Several other states also filed or joined legal challenges against the new travel ban order, including Washington, Wisconsin, Virginia, California, New York, Oregon, and Massachusetts. Also, several refugee rights groups along with the American Civil Liberties Union and the National Immigration Law Center filed challenges in Maryland. Decisions on those filings were pending as of press time.

The states challenging the ban did so for a variety of reasons. Bob Ferguson, attorney general for the state of Washington, said, “We’re asserting that the president cannot unilaterally declare himself free of the court’s restraining order and injunction.” He noted, “After spending more than a month to fix a broken order that he rushed out the door, the President’s new order reinstates several of the same provisions [as the earlier order issued in late January] and has the same illegal motivations as the original. Consequently, we are asking [U.S. District Court] Judge [James] Robart to confirm that the injunction he issued remains in full force and effect as to the reinstated provisions.” Washington’s ongoing lawsuit asserts that President Trump’s travel ban unconstitutionally violates the First Amendment’s Establishment Clause and the Equal Protection Clause, by disfavoring Islam. Mr. Ferguson noted that “Washington need not demonstrate that the ban impacts all Muslims, that it covers only Muslims or that it was motivated solely by anti-Islam animus. Rather, the state must establish that such animus was one motivating factor behind the Executive Order.” Washington’s lawsuit also argues that the President’s actions violate the Immigration and Nationality Act and the Administrative Procedures Act.

The new list of countries on a “temporary pause” for entry of their nationals to the United States under the executive order included Iran, Libya, Somalia, Sudan, Syria, and Yemen, but did not include Iraq, which the new order says “presents a special case.” The order noted that “[d]ecisions about issuance of visas or granting admission to Iraqi nationals should be subjected to additional scrutiny to determine if applicants have connections with ISIS or other terrorist organizations, or otherwise pose a risk to either national security or public safety.” The new list of countries is “subject to categorical exceptions and case-by-case waivers,” the order stated. The new order made an exception for nationals of the countries on the banned list who had a valid visa at certain specified times and dates; are permanent residents; have other valid travel documents; are dual nationals who are traveling on a passport issued by a non-designated country; are traveling on a diplomatic visa; have been granted asylum; are in refugee status and have already been admitted to the United States; or have been granted withholding of removal, advance parole, or protection under the Convention Against Torture.

The order also listed examples of possible discretionary waiver cases, such as returning students in an ongoing program of study, and called for a review of all nonimmigrant visa reciprocity agreements and arrangements, among other things.

President Trump’s previous “travel ban” executive order, “Protecting the Nation from Foreign Terrorist Entry into the United States,” was signed on January 27, 2017. Among the most controversial aspects of the order were a ban on entry to the United States for a period of 90 days for people from seven countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen; suspension of the U.S. Refugee Admissions Program for 120 days (with indefinite suspension for refugees from Syria); and prioritizing refugee claims based on religion. A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit on February 9, 2017, issued a temporary restraining order against key provisions of the travel ban. Among other things, the panel rejected the government’s argument that the President’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable.

The new order is at https://www.whitehouse.gov/the-press-office/2017/03/06/executive-order-protecting-nation-foreign-terrorist-entry-united-states. The Hawaii decision is at https://docs.justia.com/cases/federal/district-courts/hawaii/hidce/1:2017cv00050/132721/219. A statement from Washington state’s attorney general’s office is at http://www.atg.wa.gov/news/news-releases/ag-ferguson-revised-trump-travel-ban-still-subject-injunction.

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  1. USCIS To Suspend Premium Processing for H-1B Petitions Starting April 3

U.S. Citizenship and Immigration Services (USCIS) announced that starting April 3, 2017, the agency will temporarily suspend premium processing for all H-1B petitions. The suspension may last up to 6 months. While H-1B premium processing is suspended, petitioners will not be able to file a Form I-907, Request for Premium Processing Service for a Form I-129, Petition for a Nonimmigrant Worker that requests H-1B nonimmigrant classification. If the petitioner submits one combined check for both the I-907 and I-129 H-1B fees, USCIS said it will reject both forms.

USCIS said the temporary suspension will help the agency to reduce overall H-1B processing times by allowing it to process long-pending petitions, which the agency has been unable to process due to a high volume of incoming petitions and a significant surge in premium processing requests over the past few years, and by allowing it to prioritize adjudication of H-1B extension-of-status cases that are nearing the 240-day mark.

The temporary suspension applies to all H-1B petitions filed on or after April 3, 2017. Since FY 2018 cap-subject H-1B petitions cannot be filed before April 3, 2017, this suspension will apply to all petitions filed for the FY 2018 H-1B regular cap and master’s advanced-degree cap exemption (the “master’s cap”). The suspension also applies to petitions that may be cap-exempt.

USCIS said it will continue to premium-process I-129 H-1B petitions if the petitioner properly filed an associated I-907 before April 3, 2017. USCIS will refund the premium processing fee if:

  1. The petitioner filed the I-907 for an H-1B petition before April 3, 2017, and
  2. USCIS did not take adjudicative action on the case within the 15-calendar-day processing period.

This temporary suspension of premium processing does not apply to other eligible nonimmigrant classifications filed on an I-129.

The announcement is at https://www.uscis.gov/news/alerts/uscis-will-temporarily-suspend-premium-processing-all-h-1b-petitions.

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  1. Have You Been Using E-Verify for More Than 10 Years? If So, Download Your Older Reports Now

U.S. Citizenship and Immigration Services (USCIS) recently reminded employers that the agency must dispose of transaction records that are more than 10 years old in April 2017. Employers that have been using E-Verify for more than 10 years can download, through March 31, 2017, their Historic Records Reports. A Historic Records Report contains transaction records dated on or before December 31, 2006.

USCIS suggests that employers record the E-Verify case verification number on the related Form I-9, Employment Eligibility Verification, and retain the Historic Records Report with the I-9.

Instructions on how to download the report are at https://www.uscis.gov/sites/default/files/USCIS/Verification/E-Verify/E-Verify_Native_Documents/Instructions_to_Download_Historic_Reports_in_E-Verify.pdf. A related fact sheet is at https://www.uscis.gov/sites/default/files/USCIS/Verification/E-Verify/E-Verify_Native_Documents/Fact-Sheet-E-Verify-RecordRetention.pdf.

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  1. USCIS Updates Report of Medical Exam and Vaccination Record

U.S. Citizenship and Immigration Services (USCIS) recently announced that beginning April 28, 2017, civil surgeons must use the 02/07/17 edition of Form I-693 (which shows an expiration date of 02/28/2019 at the top right corner of page 1). USCIS will not accept any previous editions (with an expiration date of 03/31/2017 or earlier) that a civil surgeon signed and dated on or after April 28, 2017.

The updated form and instructions are at https://www.uscis.gov/i-693. A page listing updates to forms chronologically, along with a brief explanation of the update, is at https://www.uscis.gov/forms-updates.

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  1. Firm In The News

Cyrus D. Mehta was the Program Chair of the well-regarded Basic Immigration Law 2017 conference, held under the aegis of the Practising Law Institute in New York City, and which also was simultaneously webcast on March 2, 2017.

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March 2017 Immigration Update

Headlines:

  1. DHS Issues Two New Immigration Enforcement Memos – Two new DHS memoranda call for strict enforcement of immigration laws, stepped-up detentions, and enhancement of expedited removal, among other things.
  2. TSA Notifies Travelers of Upcoming 2018 REAL ID Airport Enforcement – Effective January 22, 2018, TSA will start enforcing REAL ID requirements at airport security checkpoints.
  3. DOJ Final Rule Changes Office of Special Counsel for Immigration-Related Unfair Employment Practices to ‘Immigrant and Employee Rights Section’; IER Publishes New Guidance – Revised regulations, effective January 18, 2017, conform DOJ regulations to the text of the INA’s anti-discrimination provision, simplify and add definitions of statutory terms, update and clarify the procedures for filing and processing charges of discrimination, ensure effective investigations of unfair immigration-related employment practices, reflect developments in nondiscrimination case law, reflect changes in existing practices such as electronic filing of charges, and reflect the office’s name change.
  4. New Immigrants Can Create USCIS Online Account When Paying USCIS Immigrant Fee – The account allows new immigrants to track the status of their green cards, receive electronic notifications and case updates, and change and update their mailing addresses.
  5. Firm In the News… in this issue:

Details

  1. DHS Issues Two New Immigration Enforcement Memos

John Kelly, Secretary of the Department of Homeland Security (DHS), has signed two new memoranda that implement two of President Trump’s recent immigration executive orders. The DHS memos call for strict enforcement of immigration laws, stepped-up detentions, and enhancement of expedited removal, among other things. As part of the new enforcement efforts, U.S. Immigration and Customs Enforcement (ICE) will seek funding to hire 10,000 new officers and agents and the Border Patrol will seek funding to hire 5,000 new agents.

Among other things, the DHS memos clarify that:

  • Anyone who has committed any immigration violation is now at risk of being put into deportation proceedings.
  • Many more people will be detained under the new guidelines.
  • DHS will expand its 287(g) program to allow state and local police to identify and hand over suspected immigration violators.
  • DHS will expand its existing expedited removal program so that many more people will be immediately removed without a hearing unless they are an unaccompanied minor, intend to apply for asylum or have a fear of persecution or torture in their home country, or claim to have lawful immigration status. Previously, expedited removal only applied to people who were caught within 100 miles of the border within 14 days after entering the country. Now expedited removal will apply to people who have been in the United States for less than two years. A Federal Register notice will soon follow to make this change.
  • The executive orders and implementing memos do not affect the Deferred Action for Childhood Arrivals (DACA) program.

Below are details of the two memoranda:

Memo implementing “border security” executive order. A memorandum issued on February 20, 2017, from Mr. Kelly to U.S. Customs and Border Protection (CBP), ICE, and U.S. Citizenship and Immigration Services, among others, implements the “Border Security and Enforcement Improvements” executive order signed by President Donald Trump on January 25, 2017. The memo calls for detention of people arriving at the borders pending final removal determinations. The memo also ends “catch-and-release” policies and states that discretionary parole authority may be exercised only on a case-by-case basis and only for urgent humanitarian reasons or significant public benefit. Among other things, the memo calls for a “surge” in deployment of immigration judges and asylum officers to interview recent border entrants and adjudicate their claims, and the establishment of “appropriate processing and detention facilities.”

The memo also orders immigration officers who determine that an arriving person is inadmissible to the United States under INA § 212(a)(6)(C) or (a)(7) to order the person removed from the United States “without further hearing or review” unless the person is an unaccompanied alien child, indicates an intention to apply for asylum or a fear of persecution or torture or a fear of return to his or her country, or claims to have a valid immigration status within the United States or to be a citizen or national of the United States.

The memo states that as DHS works to expand detention capabilities, detention resources should be prioritized based on potential danger and risk of flight. The guidance “does not prohibit the return of an alien who is arriving on land to the foreign territory contiguous to the United States from which the alien is arriving pending a removal proceeding.”

The memo also calls for enlisting state and local law enforcement agencies and personnel to assist in the enforcement of federal immigration law. Among other things, the memo also calls for identification and allocation of funding sources to build a wall along the southern border.

Memo implementing “public safety” executive order. A second memorandum also issued on February 20, 2017, from Mr. Kelly to U.S. Customs and Border Protection (CBP), ICE, and U.S. Citizenship and Immigration Services, among others, implements the “Enhancing Public Safety in the Interior of the United States” executive order signed by President Trump on January 25, 2017.

The memo states that with the exception of the June 15, 2012, memorandum entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children,” and the November 20, 2014, memorandum entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals Who Are the Parents of U.S. Citizens or Permanent Residents,” all existing conflicting directives, memoranda, or field guidance regarding the enforcement of U.S. immigration laws and priorities for removal are immediately rescinded, including the November 20, 2014, memoranda entitled “Policies for the Apprehension, Detention and Removal of Undocumented Immigrants” and “Secure Communities.”

The memo states plainly that other than Deferred Action for Childhood Arrivals (DACA) beneficiaries, DHS “no longer will exempt classes or categories of removable aliens from potential enforcement.” Among other things, the memo states that DHS personnel should prioritize for removal “criminal aliens” and those who: (1) have been convicted of any criminal offense; (2) have been charged with any criminal offense that has not been resolved; (3) have committed acts which constitute a chargeable criminal offense; (4) have engaged in fraud or willful misrepresentation in connection with any official matter before a governmental agency; (5) have abused any program related to receipt of public benefits; (6) are subject to a final order of removal but have not complied with their legal obligation to depart the United States; or (7) in the judgment of an immigration officer, otherwise pose a risk to public safety or national security.

The memo also states that DHS “will no longer afford Privacy Act rights and protections to persons who are neither U.S. citizens nor lawful permanent residents.”

Meanwhile, in other news, there are rumors that a revised travel ban executive order will be issued shortly. Stay tuned.

Links to the executive orders and related fact sheets, the two DHS memos, press releases, and additional information are at https://www.dhs.gov/executive-orders-protecting-homeland.

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  1. TSA Notifies Travelers of Upcoming 2018 REAL ID Airport Enforcement

The Transportation Security Administration (TSA) is notifying travelers via signs posted at airports that effective January 22, 2018, it will start enforcing REAL ID requirements at airport security checkpoints. The Department of Homeland Security (DHS) said this means that travelers seeking to use their state-issued driver’s licenses or identification cards for boarding commercial aircraft may only use such documents if they are issued by a REAL ID-compliant state or a non-compliant state with an extension.

TSA’s notification follows former Secretary of Homeland Security Jeh Johnson’s announcement in 2016 of the final phase of implementation of the REAL ID Act. DHS noted that as always, travelers may use alternate forms of identification such as a passport, military ID, or permanent resident card.

The REAL ID Act, passed by Congress in 2005, establishes the minimum security standards for state-issued driver’s licenses and identification cards and prohibits federal agencies, like TSA, from accepting licenses and identification cards for certain official purposes, including boarding federally regulated commercial aircraft, from states that do not meet these minimum standards and have not received an extension for compliance from DHS.

DHS said it continues to work with states to encourage compliance and may grant extensions or determine compliance for additional states as warranted. TSA said it will update signage if and when states that are currently listed receive extensions.

The DHS announcement is at https://www.dhs.gov/news/2016/12/12/tsa-notify-travelers-upcoming-2018-real-id-airport-enforcement. Former Secretary Johnson’s announcement is at https://www.dhs.gov/news/2016/01/08/statement-secretary-jeh-c-johnson-final-phase-real-id-act-implementation. A complete list of identification documents accepted at TSA checkpoints is at https://www.tsa.gov/travel/security-screening/identification. An interactive map showing the current REAL ID status of states and territories is at https://www.dhs.gov/real-id-enforcement-brief.

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  1. DOJ Final Rule Changes Office of Special Counsel for Immigration-Related Unfair Employment Practices to ‘Immigrant and Employee Rights Section’; IER Publishes New Guidance

The Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) has been renamed the Immigrant and Employee Rights Section (IER). IER enforces the anti-discrimination provision of the Immigration and Nationality Act (INA), which prohibits certain types of employment discrimination based on citizenship, immigration status, and national origin. IER’s mission and functions remain the same as OSC’s. A related final rule also made other clarifications.

The Department of Justice said in a statement announcing a webinar series to educate the public about the recent changes that IER’s revised regulations, effective January 18, 2017, conform the regulations to the text of the INA’s anti-discrimination provision, simplify and add definitions of statutory terms, update and clarify the procedures for filing and processing charges of discrimination, ensure effective investigations of unfair immigration-related employment practices, reflect developments in nondiscrimination case law, reflect changes in existing practices such as electronic filing of charges, and reflect the office’s name change from OSC to IER.

Some commenters on the rule objected to the proposed revisions for not requiring that an employer act with ill will or animus to violate the statute (8 USC § 1324b). The DOJ said its position remains that ill will or animus is not required to commit discrimination under the statute. The final rule explains the DOJ’s position in more detail “to address any confusion about the meaning of discrimination and to reiterate that discriminatory intent is required in order to violate the statute.” The final rule notes that the statute makes clear that any discrimination must be “because of” a protected characteristic; for example, citizenship status or national origin. However, the final rule states that an employer cannot justify discriminatory conduct “simply by claiming a lack of ill will or animus.” Explicit discrimination is disparate treatment even absent a malevolent motive, the final rule notes; an otherwise discriminatory employment action cannot be rendered lawful because the employer’s motives were benign.

The final rule also notes that a number of the commenters’ examples would not violate the statute as long as the employers were not treating employees differently because of a protected characteristic. In one example, an employer allows an employee’s friend or family member to help translate the Form I-9 for the employee. Such an act would not be considered discrimination, the final rule states, unless the employer allowed only certain employees to have a friend or family member assist in completing the I-9 based on citizenship status or national origin.

The final rule states that many of the examples provided by commenters characterize the act of asking for specific documents from workers during the employment eligibility verification process as “assistance.” The DOJ said it disagrees with this characterization: “Requesting specific employment eligibility verification documents from employees unnecessarily limits their choice of documentation. An employer that is interested in helping workers through the employment eligibility verification process should provide all workers with the Lists of Acceptable Documents [from the I-9 form] and explain to them that they may present one List A document or one List B document and one List C document.”

IER also issued guidance for employers on January 18 on avoiding discrimination against citizens of the Federated States of Micronesia (FSM), the Republic of the Marshall Islands (RMI), and the Republic of Palau. As the guidance discusses, citizens of the FSM, the RMI, and Palau (collectively referred to as the Freely Associated States, or FAS) are eligible under the Compacts of Free Association between the United States and the FAS for admission to the United States as nonimmigrants, and are eligible to live and work indefinitely in the United States. FAS citizens are eligible for a variety of documentation that can satisfy the Form I-9 requirements, IER notes, and employers should allow FAS citizens to choose which documents to present from the I-9 Lists of Acceptable Documents to establish their identity and work authorization.

IER is offering information about its revised regulations in its monthly employer and worker webinars and in stand-alone presentations. Topics include the changes to the regulations, how these changes affect the public, and resources for those who would like more information about IER and its regulations. IER also published “Employment Rights and Resources for Refugees and Asylees” on January 18, which discusses several rights that asylees and refugees have in the workplace and how to contact relevant federal agencies if they believe their rights are being violated.

For more information on the webinars/presentations and to register, see https://www.justice.gov/crt/webinars. Additional information about IER is at https://www.justice.gov/crt/ier-policy-and-outreach-news. The guidance on FAS nondiscrimination is at https://www.justice.gov/crt/page/file/924571/download. A link to “Employment Rights and Resources for Refugees and Asylees” is at https://www.justice.gov/crt/page/file/924681/download. The related final rule in the Federal Register is at https://www.federalregister.gov/documents/2016/12/19/2016-30491/standards-and-procedures-for-the-enforcement-of-the-immigration-and-nationality-act. Additional information for employers about nondiscrimination and the I-9 process is at https://www.justice.gov/crt/employer-information, https://www.uscis.gov/i-9-central, and https://www.ice.gov/sites/default/files/documents/Document/2015/i9-guidance.pdf.

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  1. New Immigrants Can Create USCIS Online Account When Paying USCIS Immigrant Fee

U.S. Citizenship and Immigration Services (USCIS) announced on February 21, 2017, that new immigrants now can create a USCIS online account when they pay the USCIS Immigrant Fee. The account allows new immigrants to track the status of their green cards, receive electronic notifications and case updates, and change and update their mailing addresses.

Although anyone can pay the USCIS Immigrant Fee on behalf of a new immigrant, only the immigrant can create a USCIS online account. To create the account, a user must verify his or her identity by correctly answering questions about personal immigration history. USCIS recommends having documents such as a passport, immigrant visa, and copies of the visa application and immigrant petition available for reference when answering the questions. Those who cannot answer the questions correctly may schedule a free appointment to visit a local USCIS office to have their identity verified in person after they arrive in the United States.

Creating a USCIS online account is voluntary, and those who choose not to create an account can still track the status of their green card and other cases with Case Status Online.

The USCIS announcement is at https://www.uscis.gov/news/alerts/new-immigrants-can-now-create-uscis-online-account-when-paying-uscis-immigrant-fee. Case Status Online is at https://egov.uscis.gov/casestatus/landing.do. A free appointment to verify identity can be scheduled at https://my.uscis.gov/appointment. A change-of-address tool is at https://egov.uscis.gov/coa/displayCOAForm.do.

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  1. Firm In the News

Cyrus Mehta served as a judge on one of the hearings at the National Immigration Law Competition, organized by NYU Law Moot Court Board, New York, NY, February 24, 2017.

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Mid-February 2017 Immigration Update

Headlines

  1. Ninth Circuit Blocks Entry Ban: Recent Developments re Trump Administration’s Executive Order – This article summarizes the rapidly developing immigration-related actions of the Trump administration, and related counteractions.
  2. USCIS Will Accept Only New Forms After February 21, 2017 – New fees for USCIS forms took effect in December, and updated versions of those forms have been published. These new versions are updated with the new fees and have an edition date of 12/23/16. After February 21, USCIS will no longer accept previous editions of these forms.
  3. ICE Enforcement Actions Reported – According to news reports, ICE is conducting a series of targeted enforcement actions around the United States and has removed hundreds of people.
  4. Sate Dept. Reports on Upcoming Employment-Based Visa Availability – The Department of State’s Visa Bulletin for March 2017 estimates potential monthly movement in several categories in the coming months.
  5. Firm In The News…

Details:

1.      Ninth Circuit Blocks Entry Ban: Recent Developments re Trump Administration’s Executive Order

Below is a summary of the rapidly developing immigration-related actions of the Trump administration, and related counteractions. The situation remained fluid as of press time:

  • President Trump signed an executive order on January 27, 2017, “Protecting the Nation from Foreign Terrorist Entry into the United States.” Among the most controversial aspects of the order were a ban on entry to the United States for a period of 90 days for people from seven countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen; suspension of the U.S. Refugee Admissions Program for 120 days (with indefinite suspension for refugees from Syria); and prioritizing refugee claims based on religion.
  • On January 30, the state of Washington filed suit in the U.S. District Court for the Western District of Washington at Seattle, challenging several provisions of the executive order. On the same day, Washington filed an emergency motion for a temporary restraining order. Among other things, Washington alleged that the executive order unconstitutionally and illegally stranded its residents abroad, split their families, restricted their travel, and damaged the state’s economy and public universities in violation of the First and Fifth Amendments to the U.S. Constitution and several statutes. Washington also alleged that the true intent of the executive order was not to protect against terror attacks but rather to enact a “Muslim ban.” Minnesota joined the motion.
  • Among other things, Washington and Minnesota alleged that the teaching and research missions of their universities were harmed by the executive order’s effect on their faculty and students who are nationals of the seven affected countries. The two states said that as a result of the ban, these students and faculty were prevented from traveling for research, academic collaboration, or personal reasons, and their families abroad could not visit. Some had been stranded outside the country, unable to return to the universities at all, the two states noted. The affected schools also could not consider attractive student candidates and could not hire faculty from the seven affected countries, which they had done in the past.
  • On February 1, Donald F. McGahn II, Counsel to the President, issued guidance exempting lawful permanent residents of the United States from the entry ban.
  • On February 2, U.S. Citizenship and Immigration Services (USCIS) issued a memo to all its employees indicating that the executive order does not apply to USCIS adjudications of any immigrant or nonimmigrant petition, regardless of the nationality of the beneficiary, as USCIS approval notices do not confer travel authorization. USCIS therefore resumed case processing according to existing policies and procedures.
  • On February 3, the U.S. District Court for the Western District of Washington at Seattle issued a temporary restraining order (TRO) temporarily disallowing the provisions of the executive order noted above, along with a reduction of the total number of refugees from 110,000 to 50,000 for fiscal year 2017, on a nationwide basis. The White House immediately appealed the TRO to the U.S. Court of Appeals in the Ninth Circuit.
  • On February 9, a three-judge panel of the Ninth Circuit denied the Trump administration’s request to overturn the TRO and reinstate the executive order. Among other things, the three judges reiterated Washington’s and Minnesota’s claims and held that the states had standing. The panel rejected the government’s argument that the President’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable even if those actions potentially contravene constitutional rights and protections. “There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy,” the panel said. The judges noted that the Supreme Court “has repeatedly and explicitly rejected the notion that the political branches have unreviewable authority over immigration or are not subject to the Constitution when policymaking in that context.”
  • President Trump disagreed with the Ninth Circuit’s decision via Twitter and promised to challenge the Ninth Circuit’s order in court. He also reportedly told reporters on Air Force One that he was considering issuing a “brand new” executive order very soon to ban certain people from entering the United States, although details and a timetable were unclear at press time.
  • The Department of Homeland Security (DHS) issued a statement after the Ninth Circuit’s decision that the agency “has suspended any and all actions implementing the affected sections” of the executive order. U.S. Customs and Border Protection immediately communicated to airlines worldwide to resume boarding passengers as normal.
  • The Department of State communicated that it reversed its provisional cancellation of valid visas for nationals from the seven affected countries. Further guidance indicated that individuals who arrived during the ban who had their visas physically cancelled as a result of the executive order do not need to apply for a new visa. These individuals reportedly can receive an I-193 Waiver upon arrival at a U.S. port of entry, provided that U.S. Customs and Border Protection deems them otherwise admissible.

For now, the TRO remains in effect nationwide at least until there can be a preliminary hearing on the matter. Normally, it would take a few weeks to have a preliminary hearing; however, it is not known for certain whether the TRO will hold for any specified period.

In other worrisome developments, immigration attorneys are receiving anecdotal reports that the Transportation Security Administration is asking clients traveling on domestic flights with foreign passports for copies of green cards or other documentation to prove valid immigration status. One of the reported incidents was in Hawaii where travelers were flying from one island to another.

For advice on specific situations, contact your local member of the Alliance of Business Immigration Lawyers (ABIL). If you have a foreign accent, and you are traveling within 100 miles of any U.S. border (including the oceans), ABIL strongly recommends that you carry your U.S. passport, passport card, or a photocopy of your naturalization certificate. Because of the unpredictability of the current situation, ABIL recommends keeping a photocopy of these documents in a safe place, such as at your home, so that if necessary, someone will have access to it.

The executive order is at https://www.whitehouse.gov/the-press-office/2017/01/27/executive-order-protecting-nation-foreign-terrorist-entry-united-states. The memo from Mr. McGahn is at http://www.politico.com/f/?id=00000159-fb28-da98-a77d-fb7dba170001. A U.S. Citizenship and Immigration Services statement on implementation of the January 27 executive order is at https://www.uscis.gov/news/alerts/uscis-implementation-jan-27-executive-order. A U.S. Customs and Border Protection FAQ issued on February 2 is at https://www.cbp.gov/sites/default/files/assets/documents/2017-Feb/EO-QA-PDF-WEB-02.02.2017.pdf. The Washington state complaint is at https://www.documentcloud.org/documents/3438904-AGOWA-Immigration-Ban-Complaint.html. The Seattle order is at https://www.documentcloud.org/documents/3446398-Robart-TRO.html. The Department of Homeland Security’s statement is at https://www.dhs.gov/news/2017/02/04/dhs-statement-compliance-recent-court-order. The Department of State’s initial statement is at https://travel.state.gov/content/visas/en/immigrate/Immigrate-Announcement.html. The Ninth Circuit’s order is at https://cdn.ca9.uscourts.gov/datastore/opinions/2017/02/09/17-35105.pdf.

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2.     USCIS Will Accept Only New Forms After February 21, 2017

New fees for U.S. Citizenship and Immigration Services (USCIS) forms took effect in December, and updated versions of those forms have been published. These new versions are updated with the new fees and have an edition date of 12/23/16. After February 21, 2017, USCIS will no longer accept previous editions of these forms.

A complete list of the new fees is at uscis.gov/forms/our-fees. USCIS will reject filings that do not include the new fees. The updated forms are at uscis.gov/forms. Paper copies can be requested through the USCIS forms request line (800-870-3676) and forms-by-mail service at https://egov.uscis.gov/formsbymail/.

USCIS also reminded applicants and petitioners to pay the $85 biometric services fee at the time of filing for benefit requests that require biometrics, to avoid rejection of the request.

The reminder is at https://www.uscis.gov/news/alerts/uscis-will-accept-only-new-forms-after-feb-21-2017.

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3.     ICE Enforcement Actions Reported

According to news reports, U.S. Immigration and Customs Enforcement is conducting a series of targeted enforcement actions and has removed hundreds of people. ICE’s focus reportedly includes immigrants with criminal convictions, fugitives, and those who reentered the United States after removal. Others with no criminal histories but who had removal orders were included. ICE said the actions were routine and were planned before an executive order on interior security was issued. President Trump issued that executive order, “Enhancing Public Safety in the Interior of the United States,” on January 25, 2017.

Searches to locate detainees 18 years of age or older who are currently in ICE custody can be conducted at https://locator.ice.gov/odls/homePage.do. Contact information for field offices with jurisdiction over the location of local arrests is at https://www.ice.gov/contact/field-offices. ICE’s detention center locator is at https://www.ice.gov/detention-facilities#wcm-survey-target-id.

The executive order on public safety is at https://www.whitehouse.gov/the-press-office/2017/01/25/presidential-executive-order-enhancing-public-safety-interior-united.

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4.     State Dept. Reports on Upcoming Employment-Based Visa Availability

The Department of State’s Visa Bulletin for March 2017 estimates potential movement in several categories in the coming months. The Department noted that the final action date projections indicate what is likely to happen “on a monthly basis through May or June based on current applicant demand patterns,” but that these projections are not guaranteed:

Employment First: The category will remain “Current”
China and India: A Final Action Date is likely to be imposed by August

Employment Second:
Worldwide: Current
China: Up to five weeks
India: Up to one month

Employment Third:
Worldwide: Up to three months
China: Up to six months
India: Extremely limited forward movement
Mexico: Will remain at the worldwide date
Philippines: Up to six months

Employment Fourth: Current for most countries.
El Salvador, Guatemala, Honduras, and Mexico:
Some movement may be possible during the summer months

Employment Fifth: The category will remain “Current” for most countries
China-mainland born: Up to two weeks.

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

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Firm In The News

Cyrus Mehta was a panelist on 1) Representing Contracting Companies and the Employers Who Use Them and Ethical Issues in Employer Compliance, 2017 AILA Employer Compliance and Worksite Enforcement  Conference, Scottsdale, AZ, February 10, 2017; 2) Know Your Rights Panel Discussion for the NYC Iranian Community, sponsored by Iranian Community of Northeast at Cardozo Law School, New York, NY, February 7, 2017; 3) Boundaries of Opportunity: Borders and Immigration, South Asian Millennials Conference, Yale University, New Haven, CT, February 4, 2017; and 4) Illegal/Unlawful/Violation of Status: Distinction with a Difference and Labor Certification: Sailing Calm Seas, 38th Annual AILA South Florida Immigration Law Update, Miami, FL, February 2, 2017.

Cyrus Mehta was a speaker, Know Your Rights Workshop, Jamaica Muslim Center, Queens, NY, February 15, 2017; and Immigration Executive Orders – What You And Your Client Need To Know, One Hour Briefing, Practising Law Institute, February 15, 2017.

Entry Ban: FAQs – Updated 2/14/2017

These updated FAQs reflect the situation with regard to President Trump’s executive order, “Protecting the Nation From Terrorist Attacks by Foreign Nations,” banning entry to the United States by individuals traveling from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen, as of 6 pm Eastern Standard Time (EST) on February 14, 2017. New developments continue to rapidly change implementation of the order.

What are the key points of this Executive Order?

President Trump signed an Executive Order (EO) 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.” The EO became effective as of the date of signing, though much of it is currently not in effect due to a Temporary Restraining Order (TRO) as discussed further below. Among the EO’s key provisions are:

  • 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.
  • 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.

What is an Executive Order? Can it be challenged?

Does the EO change the law or regulations?

While the president has the authority to issue such orders if the administration deems the action to be in the public interest, the EO does not change, replace, or repeal existing statutes (laws) or regulations.

Legal challenges have already been made to provisions of the EO. Many believe that wide sweeping bans such as those on refugee admissions and visa issuance effectively discriminate against individuals on a religious basis, as all the countries are predominantly Muslim.

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 after they have landed at a U.S. airport with valid visas, including green card holders. On Friday, February 3, 2017, Judge James Robart of the U.S. District Court for the Western District of Washington, in Seattle, issued a TRO [http://cdn.ca9.uscourts.gov/datastore/general/2017/02/03/17-141_TRO_order.pdf] that temporarily blocks the government from enforcing the travel ban at all. Several other federal courts have also issued stays or TROs. In light of the Western District of Washington TRO, which applies nationwide, DHS announced on February 4 that it has “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 ].  For the moment, therefore, the entry ban is not in effect, and travelers from the affected countries are being allowed to enter the United States.  The briefing schedule for the appeal before the Ninth Circuit that was also put out on February 9 [https://cdn.ca9.uscourts.gov/datastore/general/2017/02/09/unpublished_procedural_order.pdf ] has the opening brief due on March 3, 2017, the answering brief due on March 24, and the optional reply brief scheduled for March 29.  In the meantime, the case will also proceed before Judge Robart, as he denied a government request to postpone further proceedings pending action by the Ninth Circuit [http://www.cnn.com/2017/02/13/politics/trump-delay-travel-ban-seattle/].

There have been reports that the Administration is in the process of drafting language for a revised version of the EO which they believe would be more likely to survive judicial review [http://www.nbcnews.com/news/us-news/white-house-rewriting-trump-s-controversial-travel-ban-order-sources-n719356?cid=par-twitter-feed_20170210 ].  It is not yet clear exactly what such a revised EO would say.

There were also reports that the government might also seek an emergency stay from the Supreme Court [http://www.scotusblog.com/2017/02/9th-circuit-keeps-trumps-immigration-order-hold/%20], or from Justice Anthony Kennedy as Circuit Justice for the Ninth Circuit, or seek en banc review at the Ninth Circuit (that is, review by the whole court or a larger 11-judge panel).  None of these things appear to have happened as of 6 pm EST on February 14, although a judge of the Ninth Circuit did call for a vote on rehearing en banc, and so an order of the court’s En Banc Coordinator requested the parties to file briefs regarding their position on such rehearing by February 16 [https://d3bsvxk93brmko.cloudfront.net/datastore/general/2017/02/10/17-35105_Supplemental%20Briefing%20Order.pdf ].   If an emergency stay of the Western District of Washington TRO were ultimately to be granted by Justice Kennedy, by the Supreme Court as a whole, or by the en banc Ninth Circuit, the federal government would presumably resume enforcement of the travel ban immediately, with limited exceptions related to a preliminary injunction recently entered by a different court in Virginia.

On February 13, Judge Leonie Brinkema of the U.S. District Court for the Eastern District of Virginia issued a Memorandum Opinion [http://www.politico.com/f/?id=0000015a-3a0e-d784-a5fb-3ebe82c60000%20] finding that the Commonwealth of Virginia was likely to succeed on its challenge to the merits of the travel ban based on violation of the Establishment Clause of the First Amendment to the U.S. Constitution.  She entered a preliminary injunction [http://wtvr.com/2017/02/13/virginia-court-grants-preliminary-injunction-against-immigration-ban/] forbidding enforcement of the ban against anyone who resides in Virginia, or is a student at or employed by an educational institution administered by Virginia, and who was an LPR or had a valid immigrant visa, work visa, or student visa as of 5 pm Eastern time on January 27.  Even if the TRO from the Western District of Washington were to be stayed, this more limited Virginia preliminary injunction could remain 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. 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.

DOS had also indicated that all visas already issued to those within the scope of the EO 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, however, DOS indicated that it had lifted the provisional revocation, and that the visas were now valid again where 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 the EO are not subject to a TRO, stay, or injunction, CBP officers at border crossings, U.S. airports, and pre-flight inspection at certain foreign airports are not permitted to admit individuals who are nationals of designated countries or allow them to enter the United States, even if they have a facially valid visa.

Who is affected by the 90-day ban?

This ban applies to nationals of the seven (7) designated countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.

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?

It is not entirely clear, but the answer seems to be that the ban does not apply to dual nationals, at least in most instances and at least for the time being.

The EO, as written, does appear to include those born in one of the designated countries even if they do not currently hold a passport from that country or no longer consider themselves a citizen of that country. Keep in mind that “country of birth” is listed on permanent resident cards and is usually listed on one’s passport and that CBP and DOS consular officers review these documents.

However, on the afternoon of January 31, 2017, DHS Secretary Kelly held a press conference on the travel ban or, as he described it, a “temporary pause” on visa issuance and admission. On the question of the impact of dual nationality, acting CBP Commissioner Kevin McAleenan indicated that the individual would be evaluated based upon the passport presented and not on his or her “dual national” status. The CBP FAQ regarding the EO [https://www.cbp.gov/border-security/protecting-nation-foreign-terrorist-entry-united-states] similarly indicates that “Travelers are being treated according to the travel document that they present.”  The State Department also issued a bulletin at one point indicating that travel by dual nationals with a valid U.S. visa in a passport from an unrestricted country was not restricted, although that bulletin does not appear to be available on their web site at this time because it has been replaced by their announcement of compliance with the TRO.  Based on these announcements, an individual presenting a passport from a non-designated country would not be impacted by the EO’s restrictions, even if he or she also holds nationality in a designated country.

Statements by U.S. embassies (e.g., in London) and the governments of Canada and Australia are consistent with these indications that the restriction does not apply to dual nationals who present a passport from a non-designated country. For example, the U.S. embassy in London has stated on its website that “dual nationals of the United Kingdom and one of [the designated] countries are exempt from the Executive Order when travelling on a valid United Kingdom passport and U.S. visa.” Anecdotal reports from U.S.-Canada land border entry points also show that CBP is not applying the ban to Canadian dual nationals from the designated countries.

In a DOS cable to embassies and consulates worldwide, however, the DOS had initially provided the following guidance on who is considered to be a dual national: those who “possess a current passport from the restricted country, have been denied [Electronic System for Travel Authorization (ESTA)] based on nationality in a designated country (but not on travel to the country without being a national of that country), or who have otherwise identified themselves as nationals of a restricted country including on a previous application or in an interview, including as a dual national.”

Also, when the ban was in effect, some airlines reportedly were not allowing people in these situations to board, and not issuing airline tickets.

Therefore, there may be exceptions to the manner in which dual nationals are treated upon entry to the United States dependent upon a number of circumstances. Until there is clearer amended guidance from the DOS, dual nationals should assume the ban could potentially apply to them under the circumstances noted in the DOS cable discussed above, and should consult an immigration attorney for individual advice before traveling into (or out of) the United States.

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

The Executive Order 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 the EO did not ban entry by LPRs.

The Ninth Circuit in its opinion denying a stay of the TRO pending appeal expressed doubt that Mr. McGahn’s guidance was in fact binding. Based on this guidance, however, and prior to the Ninth Circuit opinion, a federal judge hearing one of the other lawsuits against the ban had entered a permanent injunction against application of the ban to LPRs.  Thus, this injunction may prevent application of the ban to LPRs even if some other executive-branch official declines to follow Mr. McGahn’s guidance.

In addition, as discussed below in the question about “exceptions” to the ban, the EO includes a provision that allows the issuance of “visas or other immigration benefits” to affected individuals on a “case-by-case basis, and when in the national interest.” On Sunday, January 29, 2017, prior to the “authoritative guidance” memo, DHS Secretary John Kelly issued a statement [https://www.dhs.gov/news/2017/01/29/statement-secretary-john-kelly-entry-lawful-permanent-residents-united-states] that attempts to clarify this provision as relates to lawful permanent residents. In this statement, Secretary Kelly notes, “Absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status will be a dispositive factor in our case-by-case determinations.”

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 seven countries. Travel to one of the seven 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 been reports of airlines refusing to board individuals who appear to be affected by the EO’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. The temporary halt in enforcing the ban could end at any time (while it now appears reasonably likely that it will last at least through the March 29 conclusion of briefing on the appeal pending before the Ninth Circuit, this is not certain, since action by the Supreme Court or the Ninth Circuit en banc could come before then).  We caution affected individuals not to rely on the court’s temporary halt when making a decision to travel abroad, at least not without consulting with an immigration attorney beforehand.

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 in the event of the ban coming back into effect, CBP officers will 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?

As of Saturday January 28, 2017, the U.S. District Court for the Eastern District of New York issued an emergency stay of certain provisions of the EO. Several other federal courts have issued similar stays. On Friday, February 3, 2017, the U.S. District Court for the Western District of Washington also issued a temporary restraining order (TRO) against the application of several sections of the EO relating to the travel ban [http://cdn.ca9.uscourts.gov/datastore/general/2017/02/03/17-141_TRO_order.pdfhttp://cdn.ca9.uscourts.gov/datastore/general/2017/02/03/17-141_TRO_order.pdf]. Thus, the U.S. government is currently restrained from applying the travel ban. This TRO applies nationwide. The Western District of Washington TRO allows further travel to the United States while it is in effect.  The preliminary injunction issued by the U.S. District Court for the Eastern District of Virginia would also, independently of the Western District of Washington TRO, allow further travel to the United States by certain covered individuals resident in Virginia or associated with its educational institutions.

The EO as written permits DOS and DHS to issue visas, or other immigration benefits, to affected individuals on a “case-by-case” basis and when in the “national interest.” It was this authority that DHS has used to allow admission of most LPRs, as discussed above. At this time, it is not clear how such requests will be adjudicated in other contexts or what factors the agencies will consider. 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. 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 such individuals, 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. The EO does not change the existing immigration law, including the right to apply for asylum.

How are the U.S. consulates implementing the ban on visas?

According to credible sources, 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. The EO has an exception for nationals of the seven designated countries who are applying for A, G, NATO, C-2, and C-3 visas; presumably affected individuals seeking A, G, NATO, C-2, and C-3 visas may still apply for and expect to receive these visas, if otherwise eligible.

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 is in effect, however, visa processing appears to have resumed.  The State Department has 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 the EO.

How will the EO 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, 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). That is, even if the TRO is stayed or reversed in some way, 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 will be subject to further guidance.

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

The EO 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 recent blog post by Cyrus D. Mehta [http://blog.cyrusmehta.com/2017/02/resisting-president-trumps-visa-revocations.html] .  During the period when the EO 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?

The EO 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 (which would be April 27, 2017). Instead, DHS is required to report whether countries have provided information “needed … for the adjudication of any … benefit under the INA … to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat.” If the country does not report or presumably if any such reporting is not found to be adequate, the country then would have 60 days to comply in providing such information or the travel ban would become indefinite.

Will the ban be extended to include other countries?

The EO’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 “comply” and 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 has been stayed by the TRO.

For most refugees, the suspension would be at least 120 days. For Syrian refugees, the ban on admission would be indeterminate. The EO states that refugee processing and admission of Syrian refugees shall cease until such time as the President has determined that sufficient changes have been made to the program to ensure its alignment with the national interest. There is no further clarification of what may be deemed “sufficient” or “national interest.” This provision effectively eliminates the processing of refugee applications by and admission of Syrian refugees.

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.

Are certain refugees or countries a priority?

The EO states that once the USRAP starts allowing refugees to enter, DOS is to prioritize refugees with religious-based claims, if the refugee’s religion is a minority religion in the individual’s country of nationality. The EO does not address the issue of subsects or minority groups within a country’s predominant religion.

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. If the suspension continues for more than 120 days, it is questionable whether the United States will admit any refugees during the 2017 fiscal year.

Are there any exceptions to this ban on refugee admissions?

Yes. As mentioned above, as of Friday, February 3, 2017, the U.S. District Court for the Western District of Washington issued a TRO restraining the entry ban sections of the EO. Thus, the U.S. government is restrained from barring the admission of refugees seeking admission as part of the USRAP, holders of valid immigrant and nonimmigrant visas, and other individuals from the seven designated countries. This TRO applies nationwide. Several other federal courts have also issued stays.

The EO as written permits DOS and DHS to admit individuals as refugees on a case-by-case basis when in the national interest.

Even during the 120-day suspension period, the DOS and DHS may continue to process and admit refugees with religious-based claims, if the religion is a minority religion in the country of nationality.

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

The EO 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.

The Executive Order is at https://www.whitehouse.gov/the-press-office/2017/01/27/executive-order-protecting-nation.

February 2017 Global Immigration Update

Feature Article:

ELECTRONIC TRAVELER SYSTEMS: AN OVERVIEW – This article provides an overview of recent developments with respect to electronic traveler systems in several countries.

Country Updates:

BELGIUM – A new Act provides for an increased focus on integration efforts, including mandatory signing of a “newcomers statement” for long-term (greater than three months) residence for some foreigners.

CANADA – This article discusses obtaining permanent residence in Canada through the Express Entry system.

FRANCE – France is implementing a law on the rights of foreigners in France.

INDIA – e-Tourist Visa for travelers.

ITALY – Several developments have been announced.

SPAIN – This article discusses the non-lucrative residence permit, which allows third-country nationals (foreign nationals not covered by the EU legal framework) to live in Spain without performing labor activities.

TURKEY – There has been an important change in citizenship rules.

UNITED KINGDOM – This article briefly notes hot topics for 2017.

Feature Article:

ELECTRONIC TRAVELER SYSTEMS: AN OVERVIEW

This article provides an overview of recent developments with respect to electronic traveler systems in several countries. Many countries do not have electronic traveler systems similar to the Electronic System for Travel Authorization in the United States.

Belgium

Belgium does not have an electronic traveler system similar to the Electronic System for Travel Authorization in the United States. Belgium has implemented European legislation, including EU Directive 2016/681 of April 27, 2016, on the use of passenger name record (PNR) data for the prevention, detection, investigation and prosecution of terrorist offenses and serious crime. An Act, dated December 25, 2016, was published in the Belgian Official Journal of January 25, 2017 (PNR Act).

The PNR Act provides that passenger carriers of all transport sectors (air and sea, trains, road transport), as well as travel operators/companies, must communicate passenger data to the Passenger Information Unit (PIU). The PIU, which will be part of the federal Ministry of Interior Affairs, will store the data in a passenger database and analyze it for security purposes. The PNR Act provides privacy guarantees, such as rules for the organization of the PIU, and a limited list of purposes for which passenger data can be processed and analyzed.

The PNR Act has not yet taken effect. A Royal Decree will determine the effective date for each transport sector and for travel operators/companies.

Canada

In an effort to enhance border security, in 2011 the Canadian federal government launched the “Canada-United States Perimeter Security and Economic Competitiveness Action Plan,” which mentioned the potential implementation of an electronic screening process for all visa-exempt foreign nationals. Effective November 10, 2016, all visa-exempt foreign nationals wishing to travel to Canada by air must obtain an electronic travel document called an Electronic Travel Authorization (eTA) before boarding their flights to Canada. This new measure is designed to allow Canadian authorities to pre-screen all visa-exempt foreign nationals and identify any cause that would make a foreign national inadmissible to Canada. This important initiative is expected to reduce costs for Canadian authorities and delays for travelers by having inadmissibility assessments conducted before a foreign national’s arrival in Canada rather than at a Canadian port of entry.

This new obligation to obtain an eTA before air travel applies to all foreign nationals who do not require a Temporary Resident Visa/Visitor Visa to enter Canada. Canadian citizens, Canadian Permanent Residents, and U.S. citizens are exempt from this requirement and can continue to enter Canada using their valid Canadian passports, Canadian Permanent Residency cards, or U.S. passports. In addition to this newly introduced travel measure, Canadian dual citizens must be vigilant when traveling to Canada because they now must travel with their Canadian passports and can no longer enter Canada with the passport of their other country of citizenship. An exception is made for dual Canadian/U.S. citizens, who can continue use their U.S. passports to enter Canada.

An eTA can be obtained online and is usually approved within minutes of applying. The eTA is an electronic document and there is no paper evidence of it. Air carriers are given access to the Canadian Border Services Agency’s database to verify whether foreign nationals have obtained the required eTA before boarding their flights to Canada. Foreign nationals should carefully review the accuracy of their information when submitting an application and should be sure to spell their name as it appears on the bottom of the passport (machine-readable portion) rather than using the spelling shown elsewhere on the passport, if the spelling differs.

India

India has launched an e-Tourist Visa (eTV) for travelers whose sole objective of visiting India is recreation, sight seeing, casual visit to meet friends or relatives, short duration medical treatment or a casual business visit.

The eTV is a single entry visa and a visitor can request up to two eTVs per year. The eTV is valid for 30 days from the date of arrival. The holder of the eTV visa may remain in India for a maximum of 30 consecutive days after the initial entry date and it is non –extendable and non-convertible.

Although there is no definition of the term ”casual business”, anecdotal evidence suggests that it could involve short business meetings or attending a conference during the 30-day period.

The e-TV facility is available for nationals of following countries/territories:

Albania, Andorra, Anguilla, Antigua & Barbuda, Argentina, Armenia, Aruba, Australia, Austria, Bahamas, Barbados, Belgium, Belize, Bolivia, Bosnia & Herzegovina, Botswana, Brazil, Brunei, Bulgaria, Cambodia, Canada, Cape Verde, Cayman Island, Chile, China, China- SAR Hongkong, China- SAR Macau, Colombia, Comoros, Cook Islands, Costa Rica, Cote d’lvoire, Croatia, Cuba, Czech Republic, Denmark, Djibouti, Dominica, Dominican Republic, East Timor, Ecuador, El Salvador, Eritrea, Estonia, Fiji, Finland, France, Gabon, Gambia, Georgia, Germany, Ghana, Greece, Grenada, Guatemala, Guinea, Guyana, Haiti, Honduras, Hungary, Iceland, Indonesia, Ireland, Israel, Jamaica, Japan, Jordan, Kenya, Kiribati, Laos, Latvia, Lesotho, Liberia, Liechtenstein, Lithuania, Luxembourg, Madagascar, Malawi, Malaysia, Malta, Marshall Islands, Mauritius, Mexico, Micronesia, Moldova, Monaco, Mongolia, Montenegro, Montserrat, Mozambique, Myanmar, Namibia, Nauru, Netherlands, New Zealand, Nicaragua, Niue Island, Norway, Oman, Palau, Palestine, Panama, Papua New Guinea, Paraguay, Peru, Philippines, Poland, Portugal, Republic of Korea, Republic of Macedonia, Romania, Russia, Saint Christopher and Nevis, Saint Lucia, Saint Vincent & the Grenadines, Samoa, San Marino, Senegal, Serbia, Seychelles, Singapore, Slovakia, Slovenia, Solomon Islands, South Africa, Spain, Sri Lanka, Suriname, Swaziland, Sweden, Switzerland, Taiwan, Tajikistan, Tanzania, Thailand, Tonga, Trinidad & Tobago, Turks & Caicos Island, Tuvalu, UAE, Ukraine, United Kingdom, Uruguay, USA, Vanuatu, Vatican City-Holy See, Venezuela, Vietnam, Zambia and Zimbabwe.

Travelers to India on eTV should have a return ticket or onward journey ticket with proof of sufficient funds to support themselves during their entire stay in India.

Note that the eTV is not available to international travel document holders or to applicants with a diplomatic passport. International travelers having either a Pakistani passport or are of Pakistani origin would have to apply for a regular visa at an Indian Mission.

For further details please visit https://indianvisaonline.gov.in/visa/tvoa.html.

Italy

Italy does not have an electronic traveler system similar to the Electronic System for Travel Authorization in the United States.

United Kingdom

The United Kingdom does not have an electronic traveler system similar to the Electronic System for Travel Authorization in the United States. Passport holders from Kuwait, Oman, Qatar, and the United Arab Emirates (UAE) are eligible to apply for electronic visa waivers (EVWs) permitting them to visit the UK for up to six months for tourism, business, study, or medical treatment.

EVWs may be used only once, and each person traveling to the UK must obtain his or her own EVW (i.e., each member of a family traveling together must apply for and obtain an EVW).

EVW applications may be made online at https://www.electronic-visa-waiver.service.gov.uk/apply/begin (instructions are provided in both English and Arabic) and must be submitted between 3 months and 48 hours before travel to the UK. Individuals should have the following ready before applying:

  • A current, valid passport;
  • The address in the UK where the applicant will be staying;
  • Travel details (flight number, departure/arrival dates and times); and
  • An uploadable image of the applicant’s passport photo page.

Third parties may apply on behalf of individuals seeking an EVW, but they must also provide their contact details.

Successful applicants will receive an email with a link to download their EVW within 24 hours of submitting the application online. The EVW must be shown before boarding the aircraft, boat, or train, as well as at the UK port-of-entry immigration controls.

If the departure location (airport, port, or train station), or arrival time in the UK (if greater than 8 hours) changes, EVW holders must amend their travel details online. Individuals will need to provide the EVW number and date of birth to make changes.

Country Updates:

BELGIUM

A new Act provides for an increased focus on integration efforts, including mandatory signing of a “newcomers statement” for long-term (greater than three months) residence for some foreigners.

A new Act, which imposes integration efforts on some foreigners who want to reside in Belgium for more than three months, has been published in the Belgian Official Journal of January 16, 2017. There are two aspects under the Act: the signing of a “newcomers statement” at the time of the initial residence application, and a future “audit” of integration efforts:

  • An applicant for long-term (greater than three months) residence must sign a “newcomers statement” in which he or she acknowledges (i) understanding the fundamental values and standards of Belgian society, and (ii) willingness to act in accordance with (French: agir en conformité avec/ Dutch: handelen naar) these values; and
  • The applicant will be informed that he or she must submit proof of his or her integration efforts in the future.

The new rules apply to, for example, third country (non-European Union [EU]/European Economic Area [EEA]) labor migrants, as well as their family members who apply for residence on the basis of family reunification.

Several categories of foreigners are exempt; for example:

  • Recognized refugees or beneficiaries of subsidiary protection and their family members;
  • EU/EEA (EEA includes EU and Iceland, Liechtenstein, and Norway) citizens and their family members;
  • Students;
  • Victims of human trafficking;
  • Long-term residents (Council Directive 2003/109/EC of 25 November 2003);
  • Minors;
  • Foreigners who are seriously ill.

Noncompliance and consequences include:

  • A refusal to sign the “newcomers statement,” which will result in inadmissibility;
  • A foreigner who holds a residence permit for a limited term must prove his or her willingness to integrate. This proof must be submitted within the first limited residence term (e.g., for a labor migrant = duration of work permit + 1 or 3 month(s)); failure could be a ground for refusal to renew the residence permit;
  • The Minister for Asylum and Migration or the Foreigners’ Office (federal department in charge of immigration) can terminate the right to reside if the authorities find that the foreigner has not made a “reasonable effort” to integrate. The authorities can ask the foreigner to submit information or evidence. The right to reside can be terminated during the four years following the end of the first year after issuance of the limited or unlimited authorization to reside, or following the end of the first year after the authorization to reside in Belgium.

The authorities will assess the integration efforts by taking into account the following criteria, listed in the new Act:

  • Attend an integration course, organized by the authority competent for the foreigner’s main residence;
  • Working in Belgium as employee, civil servant, or self-employed;
  • Degree, study certificate or evidence of enrolment in a recognized or subsidized educational establishment;
  • Attend a vocational training, recognized by a competent authority;
  • Knowledge of the official language of the place, where the foreigner is registered;
  • No criminal record;
  • Active participation in community life.

If the authorities consider a decision to terminate the right to reside, they must take into account:

  • The nature and the strength of the family ties of the foreigner;
  • The duration of residence in Belgium;
  • The existence of family ties or cultural/social connections with the country of origin.

The new Act took effect, at least in part, on January 26, 2017.

  • The “newcomers statement” is not yet effective. The text of the statement has not yet been confirmed. The Belgian federal authorities will have to agree on the text with the French, Flemish, and German-speaking communities (communities are regional authorities, competent for integration);
  • The integration obligation will become relevant for all residence applications filed as of January 26, 2017.

With respect to the impact of the new requirements on non-EU/EEA labor migrants and their family members, labor migrants can probably prove integration efforts because of their work in Belgium. Things could be more complicated for their family members, but a decision to terminate residence must take into account the nature and the strength of the family ties of the foreigner, the duration of residence in Belgium, and the existence of family ties or cultural/social connections with the country of origin.

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CANADA

This article discusses obtaining permanent residence in Canada through the Express Entry system.

Introduced on January 1, 2015, Express Entry is an online application system used by Immigration, Refugees and Citizenship Canada (IRCC) to manage, assess, and approve Canadian permanent residence applications under the Federal Skilled Worker program, the Federal Skilled Trades program, and the Canadian Experience Class program. In addition to these economic immigration programs, Express Entry is currently being used by certain Canadian provinces as a gateway to apply for their Provincial Nominee programs. Express Entry applications are intended for foreign nationals wishing to settle in a Canadian province other than Québec (because Québec operates its own distinct permanent immigration program). While the core requirements of each program remain unchanged, Express Entry brings to the Canadian immigration world a new system designed to improve processing times and to give immigration officers the means to select from a large pool of candidates the top applicants for Canadian permanent residence.

The Express Entry system operates under a two-step process. First, a candidate wishing to apply for Canadian permanent residence must submit his or her application “profile” in the Express Entry pool of candidates, where the application is evaluated against other candidates in the pool. The Express Entry system assesses a candidate’s desirability by ranking all applications received according to Comprehensive Ranking System (CRS) points, and provides each candidate with an overall CRS points score. Under the Express Entry system, CRS points are awarded to candidates based on the value of their education, their English and French language skills, their Canadian work experience, and their Canadian offer of employment, if applicable. Moreover, points are given to candidates based on a broader skills transferability category, which awards points based on a combination of English and French language proficiency, education credentials, and Canadian and foreign work experience.

Following the assessment of each candidate’s qualifications in the Express Entry system, candidates with the highest number of CRS points receive an “Invitation to Apply” for Canadian permanent residence. This “Invitation to Apply” is a mandatory step in the process, without which it is impossible to apply for Canadian permanent residence under the economic immigration programs listed above. Once the “Invitation to Apply” is received, a candidate has 90 days to submit a Canadian permanent residence application along with all supporting documents.

Pursuant to the “Ministerial Instructions Amending the Ministerial Instructions Respecting the Express Entry System,” effective November 19, 2016, significant changes were introduced to the way points are awarded in the Express Entry system. Until recently, candidates who held a Labour Market Impact Assessment (LMIA)—a favorable opinion issued by Service Canada confirming a temporary job offer in Canada—were awarded 600 CRS points, virtually guaranteeing an “Invitation to Apply.” With the newly announced changes of November 19, 2016, candidates with a valid LMIA are no longer awarded these 600 CRS points and must now be satisfied with only 50 CRS points. While this is a major disadvantage to candidates who before November 19, 2016, depended on their LMIAs to secure an “Invitation to Apply,” other skilled candidates who hold valid work permits under LMIA-exempt categories (such as Intra-Company Transferees or NAFTA Professionals) will now be awarded 50 CRS points or 200 CRS points, depending on their occupation (200 CRS points are awarded for an offer of employment in an occupation contained in Major Group 00 (senior management occupations) of the National Occupation Classification (NOC)). It is expected that these candidates will become more competitive in the Express Entry pool of candidates and will decrease the overall CRS score a candidate must reach to receive the sought-after “Invitation to Apply.” As an example, with the January 4, 2017 “draw,” the candidate with the lowest score to receive an “Invitation to Apply” had a total of 468 CRS points. The November 2016 changes also provide new points for Canadian study credentials.

Once a candidate receives the “Invitation to Apply” for Canadian permanent residence and submits a complete application to IRCC, he or she may become eligible to file an application for a Bridging Open Work Permit (BOWP). This work permit, valid for 12 months, allows a candidate to renew a current Work Permit (if expiring within 4 months) while the Express Entry Application for permanent residence is being processed.

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FRANCE

France is implementing a law on the rights of foreigners in France.

The Law on the Rights of Foreigners in France of March 7, 2016, and the decrees and orders of October 28, 2016, established the legislative and regulatory framework for new procedures for professional immigration, specifying in particular the new procedures and the lists of documents to be provided. The circulars of November 2, 2016, provide details on the priorities to guide the administration in the application of this law. The following are highlights:

Exemption from work permits for stays of less than or equal to three months for third-country nationals who are engaged in paid employment (Ministry of the Interior Circular of November 2, 2016), Decree No. 2016-1461 of October 28, 2016: https://www.legifrance.gouv.fr/eli/decret/2016/10/28/INTV1609940D/jo

The law of March 7, 2016, provides for the abolition of work permits for foreign employees who come to France to work for three months or less in areas determined by decree. The list of these fields of activities was fixed by decree of October 28, 2016, and codified in article D5221-2-1 of the Labor Code. The circular of November 2, 2016, specifies that the exemption relates only to work authorization, not to any other social or tax obligations. The exemption applies to an alien who is a national of a third country, who is in principle subject to a work permit, and who comes to France to work as an employed person in the categories listed in the decree, for a period that cannot exceed three months .

Scope of exemption. The scope of exemption is specified for each activity; i.e., those that are work permit-exempt. The burden is on the employer to verify whether or not the wage-earning activity to be exercised is exempted from a work permit of less than three months.

If the employer’s field of activity or employment is subject to exemption, the work permit application does not need to be filed with the DIRECCTE (directions régionales des entreprises, de la concurrence, de la consommation, du travail et de l’emploi). Employees who require a Schengen visa must add evidence regarding the work permit exemption to the visa application. In all cases, whether employees are Schengen visa-exempt or not, the employer must provide the employee with the documents justifying the exemption. These documents are listed for each type of activity (e.g., for audit and expertise activities, in particular any document attesting that the activity is an audit and verification assignment, as well as the letter of assignment or the addendum to the employment contract specifying the nature, reason, duration of the assignment, and conditions of employment and remuneration).

Measures for the reception, stay, and work of foreigners for stays of more than 90 days

The new law and its implementing decrees are intended to facilitate the stay of foreigners in France and provide for related administrative procedures, particularly with regard to work in France. This relaxation of procedures is accompanied by new verification procedures, in particular during the period of validity of the multi-annual cards.

New cases of exemption from medical examinations. As of November 1, 2016, foreign nationals in several categories no longer must submit medical certificates issued by L’Office Français de l’Immigration et de l’Intégration (OFII) in support of their applications for a residence permit, including:

  • Applicants for the “Talent Passport” and “Family Passport” passes (“Passport” in this context refers to the new French immigration category and is not a passport in the usual sense of the word)
  • Applicants for the “intra-company transferee (ICT) detached employee” residence permit
  • Applicants for the internship card and trainee ICT
  • Students as of January 1, 2017

Provisional stay permits (autorisation provisoire de séjour, or APS) for the purpose of exercising a first job or pursuing a professional activity. The provisional authorization of stay for foreign students is expanded and relaxed in the following ways:

  • Opening to more degrees: Initially intended for students who have at least a master’s degree, it is now also open to students holding a level I diploma certified by the Conférence des Grandes Écoles or a diploma of professional license.
  • The APS scheme is open to students showing a business start-up project in a field corresponding to their training. At the end of the validity of the APS, the student will be able to obtain a residence card, “entrepreneur/professional liberal,” or “Talent Passport,” labeled “entrepreneur,” if he or she fulfills the conditions of issuance.
  • The student holding an APS can obtain an “employee” or “temporary worker” residence card, but also a “Talent Passport” labeled “skilled employee/innovative company, CBE, researcher or performer.”

The conditions to benefit from non-opposability of employment must be maintained: employment or professional activity in connection with the training taken, with a threshold of remuneration of 1.5 times the guaranteed minimum wage (salaire minimum de croissance, or SMIC) (which can, however, be adjustable depending on the professional field).

Temporary residence permits (CST)

The temporary residence permit (carte de séjour temporaire, or CST) is distinguished from the multi-annual residence permit and the multi-year “Talent Passport” residence permit. CSTs have a maximum validity of one year, except for the “temporary worker” CST when renewed.

ICT trainee, ICT family trainee, ICT mobile trainee, and ICT family mobile trainee (article L313-7-2 of CESEDA)

  • A VLS-TS “ICT trainee” may be granted to an employee who is not a citizen of the European Union (EU), who is undertaking an internship within the framework of an internship agreement. The VLS-TS is issued for a duration corresponding to that of the internship within the limit of one year. The status of “ICT trainee” allows mobility of up to 90 days in another member state of the EU. The “ICT family trainee” residence card is issued to the spouse. This card gives right to the exercise of a professional activity.
  • The “ICT mobile trainee” residence permit is issued to a foreign employee holding an “ICT trainee” card obtained in another EU Member State. It allows mobility of more than 90 days in intra-group context. The spouse of the “ICT mobile trainee” receives a “mobile ICT trainee family” card entitling him or her to the exercise of a professional activity.

Temporary residence permit “employee” and “temporary worker” (article L313-10 CESEDA)

  • The “employee” residence permit may be issued to a foreigner who has a contract of indefinite duration.
  • The “temporary worker” residence permit may be issued to a foreign national who has a fixed-term contract or is subject to the posting under Articles L1262-1 and L1262-2 of the Labor Code (own account, intra-group, in the framework of a service provision or within the framework of the interim).
  • Employees on intra-group mobility who cannot benefit from either a “Talent Passport” or an “ICT detached” residence permit may be issued a “temporary worker” residence permit.
  • The CST cannot be renewed for a period exceeding one year, except for the CST “temporary worker,” which can be renewed for the duration of the fixed-term contract or for the extension of the secondment.
  • Students with a master’s degree, a level I diploma certified by the Conference de grandes écoles or a diploma of professional degree, have access to the CST “temporary worker” or “employee” in the framework of change of status, without being subject to a labor market test, provided the job offered is consistent with the studies followed and the proposed remuneration is at least 1.5 times the SMIC.

Temporary residence permit “entrepreneur/professional” (article L313-10 CESEDA)

This permit merges the previous “merchant” and “professional” titles and may be issued to foreigners who wish to pursue a self-employed, commercial, craft, industrial, or professional activity.

Multi-year residence card (articles L313-17 to L313-24 CESEDA)

The new multi-year residence card system is effective as of November 1, 2016. Distinctions are made between the general multi-year residence permit, the multi-year residence card “Talent Passport” and “Family Passport,” the multi-year residence permit.

Multi-year residence cards can only be issued on first request (new arrivals) upon presentation of a long-stay visa.

General multi-year residence card. The four-year general multi-year residence permit may be issued upon the expiration of an initial residence permit of one year, provided the following conditions are met:

  • Continued compliance with the initial conditions for issuance of the one-year residence permit
  • Attendance of the training prescribed under the Republican Integration Contract (CIR)
  • Absence of rejection of the essential values of the Republic

Holders of a long-stay “Visitor,” “Trainee,” or “Temporary Worker” visa do not have access to the multi-year residence card.

The general multi-annual residence permit has a fixed duration:

  • Four years for holders of “Salaried” CSTs on permanent contracts or holders of “Contractor/Professional” CSTs
  • Two years for holders of residence permits as spouses of French people or parents of French children who have full access to the resident card after three years

The multi-year residence permit issued to foreign students has a duration adapted to the course of study followed. At the end of an initial one-year student residence permit, a multi-year residence permit may be issued, the duration of which would correspond to the length of the course of study followed.

Multi-year residence card Talent Passport (article L313-20 CESEDA)

The multi-year residence card “Talent Passport” brings together under a single residence permit 10 categories of professional activities for which a stay and work in France ought to be facilitated. Its duration is four years, in principle, and it can be issued from the initial admission to stay.

When issued for the exercise of an activity as an employed person, prior authorization to work is not required.

Family members can receive a “Family Passport” residence permit, the duration of which will be equal to that of the principal and with a right to work.

Initial application: If the foreign national resides outside of France, the decision to issue the title is made by the diplomatic and consular authority and the residence permit is issued by the prefect of the residence of the foreign national on presentation of his or her passport bearing a long-stay “Talent Passport” visa. When the envisaged duration of stay is 12 months or less, a joint long-stay visa and permit to stay (VLS-TS) is issued for the duration of the envisaged stay. When the duration of stay exceeds 12 months, a long-stay visa and, upon arrival in France, a residence permit are issued, according to the contract or the nature of the project.

Where the foreign national is already admitted to residence in French territory, the decision to issue the permit is made by the prefect of his or her place of residence.

Renewal: Renewal must be requested within two months of the expiration of the VLS-TS or the residence permit. Renewal is subject to compliance with the initial conditions and certain additional conditions for the specific categories: business creator, innovative economic project holder, or economic investor.

“European Blue Card Passport(article L313-20-2° CESEDA)

This is issued to foreign nationals who are in highly qualified employment for a period of one year or more and who have completed at least three years of higher education or have acquired an equivalent qualification through at least five years of experience.

The wage provided for in the contract must be at least one and a half times the average annual reference wage. This amount is 53,836.50 euros annually as of November 1, 2016.

Talent Passport Employee on Assignment (article L313-20-3° CESEDA)

This is issued to an employee of a foreign affiliate being transferred to France. The conditions are as follows:

  • An employment contract of more than three months with an employer established in France and a gross remuneration of at least equal to 1.8 times the SMIC.
  • A seniority of at least three months with the group or the employer established outside France.

Talent Passport Researcher” (article L313-20-4° CESEDA)

This title is awarded to a foreign national holding a degree equivalent to a master’s degree that requires research work or provides university-level education, under a hosting agreement signed with a public or private organization having a previously approved research or higher education scheme.

Talent Passport Performing Artist” (L313-20-9°)

For the above and this category (Talent Passport issued under 2°, 3°, 4°, and 9° of article L313-20 CESEDA), the duration of the residence permit corresponds to the duration of the employment contract.

“Talent Passport Young Graduate Employee” or “Employee of an Innovative Company” (article L313-20-1° CESEDA)

  • Issued to an employee who has obtained a master’s degree (or level I diploma certified by the Conférence des Grandes Écoles) holding a contract of employment of at least three months and a salary equal to at least twice the annual minimum wage
  • Can also be issued under the same conditions of employment contract and salary when hired by an innovative company as defined in Article 44 sexies 0 A of the General Tax Code. The employee must participate in the research and development project of the company
  • The duration of the card is identical to that of the employment contract

“Creator of Business Passport” (article L313-20-5° CESEDA)

This is issued to a foreign national under the following conditions:

  • Diploma equivalent to a master’s degree or any document showing at least five years’ experience at a comparable level
  • Proof of sufficient resources during his or her stay to provide for himself or herself and, where appropriate, those of his or her family members.
  • Proof of an investment of at least €30,000 in the project
  • Proof of compliance with the rules in force in the field of activity in question

Talent Passport Innovative Economic Project” (article L313-20-6° CESEDA)

This is issued when a foreign national can:

  • Justify an innovative economic project
  • Show recognition of his or her project by a public body
  • Prove sufficient resources during his or her stay to provide for himself or herself and his family members, irrespective of the benefits and allowances mentioned in the third sentence of 2° of article L314-8

Talent Passport Mandataire Social (article L313-20-8° CESEDA)

This is issued when a foreign national can:

  • Hold the position of legal representative in an entity or a company doing business in France
  • Have seniority of at least three months as an employee or corporate officer in an entity or an affiliated company outside France
  • Receive a remuneration of at least three times SMIC

The card is issued for a period corresponding to that of the functions performed within the limit of four years.

Talent Passport Foreigner of International or National Fame” (article L313-20-10° CESEDA)

This is issued when a foreign national can:

  • Show established national or international fame
  • Exercise in France an activity in a scientific, literary, artistic, intellectual, educational, or sports field for more than 3 months
  • Show sufficient means of existence

The duration of the title is determined by the nature, characteristics, and duration of the project in France, up to a maximum of 4 years

Talent Passport Economic Investor” (article L313-20-7° CESEDA)

This is issued when a foreign national can:

  • Show a project of direct economic investment in France
  • The applicant must personally or through a company which he or she manages or of which he or she holds at least 30% of the capital, invest or undertake to invest 300,000 euros (tangible or intangible asset) and create or safeguard employment or, failing that, to commit to creating or safeguarding employment within the 4 years following the investment in France

This direct economic investment of 300,000 euros minimum is realized by:

  • An investment in social capital
  • Reinvested earnings
  • Loans between affiliates

Indirect (passive) investment, also referred to as financial investment or portfolio, does not fall within the scope of this residence permit.

Multi-annual “ICT Secondee” residence permit (article L313-24 I and II CESEDA)

The multi-annual residence permit referred to as an “ICT Secondee” may be issued to a foreign employee who is a third-country national seconded by his employer to an affiliate company in France and for the purpose of holding a senior management position or to provide expertise without a contract of employment with the host entity in France.

This involves the intra-group secondment (article L1262-1-2° of the Labor Code) in the framework of an assignment of senior management or contribution of expertise.

The conditions required to benefit from the ICT secondment include:

  • At least three months of continuous seniority in the group
  • Intra-group secondment
  • Secondment for a senior management position or contribution of expertise
  • Assignment of up to three years

There is no minimum pay threshold. The conditions of remuneration must be commensurate with the nature of the employment. The foreign national must show sufficient resources to meet his or her own needs and, where appropriate, those of his or her family members.

When the envisaged duration of stay is less than or equal to 12 months, the foreign employee receives a VLS-TS labelled “ICT Secondee.” When the envisaged duration of mission is more than 12 months, the foreign employee receives a long-stay visa labeled “ICT Secondee” and, upon his or her arrival in France, a residence permit.

The “ICT Secondee” residence permit allows intra-group assignments to be carried out in other EU Member States.

Family members (spouses and minor children entering France) can receive the residence permit “ICT Seconde Family,” which authorizes the stay and work in France. The duration of the card is aligned with that of the employee.

ICT Mobile Secondee card (article L313-24-III and IV CESEDA)

This residence permit is issued to a foreign employee holding an ICT residence permit issued by another EU Member State who is assigned to France for more than 90 days as an intra-group transfer. The conditions for benefiting from this status include:

  • Intra-group secondment
  • Having already been admitted to another EU country as a seconded ICT employee
  • Employment conditions specific to the ICT secondment and the legal remuneration thresholds
  • Showing sufficient resources

Procedures for the control and withdrawal of residence permits

The authorities can conduct post-clearance verifications, and the Prefects have an expanded right to certain kinds of information.

Obligation to provide information (article L313-5-1 CESEDA)

The beneficiary of a residence permit must inform the administration of any change in his or her situation. This results in three cases of potential refusal:

  • The foreign national ceases to fulfill the conditions for the residence permit.
  • The foreign national does not cooperate in the verification process.
  • The foreign national does not respond to the convocations.

The administration’s right to information (article L611-12 CESEDA)

This right can be exercised during initial application, during the period of validity in a random or targeted way, and during renewal.

  • The Prefect may solicit other administrations or public or private bodies (e.g., an administration, social security, higher education institution, energy provider, financial institution, or register of commercial courts) to verify the accuracy of the information provided by the applicant for the residence permit.
  • The Prefect may verify the authenticity of the documents and have information or documents sent to it within the framework of a residence permit application.
  • Confidentiality may not be a ground to refuse requests for information from the Prefect.
  • The Prefect’s verification may not be a systematic annual check. Rather, it could be random and targeted. Two verification phases can be distinguished:

– During the first year of application for multi-annual residence permits (November 1, 2016, to November 1, 2017), a random and targeted monitoring phase will make it possible to draw the first conclusions from the implementation of the new procedures.

– A second phase will begin on November 1, 2017, on the basis of the results obtained during the first control phase.

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Several developments have been announced.

Posted Workers Secondment Notification Submission Deadline Approaching

The new obligations set forth by Decree n. 136/2016 implementing the EU Posted Workers Directive (2014/67) apply to:

  • Any assignments activated on or after July 22, 2016, that are ongoing as of January 26, 2017. For these, the secondment notification must be filed by January 26, 2017.
  • Any assignments activated after December 26, 2016.

Who is affected?

  • Employers established outside Italy (EU or non-EU) sending their employees (EU and non-EU) to work in Italy on a temporary basis.

Action required:

  • Employers established outside Italy must check whether any assignment to Italy has been activated on or after July 22, 2016, and is ongoing as of January 26, 2017.
  • For any assignments to Italy activated on or after July 22, 2016, and ongoing as of January 26, 2017, employers must file the secondment notification by January 26, 2017, and comply with the other obligations set forth by the law.
  • For any assignments to Italy, employers must now file the secondment notification by midnight of the day preceding the assignment start date and comply with the legal obligations.

The dedicated website, Posting of Workers (http://www.distaccoue.lavoro.gov.it/) (available in English and Italian) provides an overview of the current regulation and clarifies the operational aspects.

Implementation of Directive 2014/66 on Intra-EU Mobility

With the publication of Legislative Decree n. 253/2916 , effective January 11, 2017, Italy has finally implemented Directive 2014/66/EC of May 15, 2014 (ICT Directive) on the conditions of entry and residence of third-country nationals in the framework of an intra-corporate transfer. The decree amended the Consolidated Act on Immigration (L. Decree 286/1998, introducing two new articles (27-quinques and 27-sexies) of the immigration law.

The following are highlights of the ICT Directive.

Who is affected?

The new provisions apply to third-country nationals temporarily seconded from a non-European Union (EU) employer to an Italian company of the same group and who qualify as:

  • Managers (dirigenti—workers in a senior position, directing the host entity, supervising the work of other professional or managerial employees);
  • Specialists (workers possessing specialized knowledge essential to the host entity’s areas of activity, techniques, or management); or
  • Trainees (graduated workers transferred for career development purposes).

Workers who already hold an ICT permit issued by another EU Member State can work in Italy up to 90 days by notifying the local Police Station (Dichiarazione di presenza) of their stay. If a worker wants to stay for more than 90 days, he or she must apply for and obtain an ICT Work Permit but is exempt from obtaining a work visa. He or she, however, must register for and obtain an ICT permit of stay.

What are the main features of the new ICT permit?

  • It allows both residence and work in Italy.
  • It may be issued for a maximum of three years for managers and specialists and up to one year for trainees.
  • Upon expiration of the maximum ICT permit validity period, a new application can be filed only after at least three months have passed.
  • The work permit application is filed by the Italian host company.
  • Family members of ICT permit holders qualify for a family permit even if the assignment is for less than one year.
  • Holders of a valid Italian ICT permit may, under certain conditions, temporarily perform activities at an entity of the same group established in another EU Member State.

What are the main requirements to qualify for the new ICT permit?

  • The host entity established in Italy and the employer established outside the EU must be part of either the same company or group of companies.
  • The employee must have been working for the same company or for a company of the same group for at least three uninterrupted months immediately preceding the transfer.
  • After the transfer, the worker must return to the company, part of the same company or a company of the same group outside the EU.
  • The worker will cover a position as manager, specialist, or trainee for which he or she has the required qualifications, professional experience, or educational degree (if the position is for a regulated profession, this must be recognized in Italy).
  • A commitment to comply with the relevant social security obligations in Italy must be confirmed, unless a social security agreement applies.

The Italian immigration authority is still developing application procedures. It is uncertain how the new application procedures will work in practice.

The existing highly skilled migrant program remains in place with some variations. Therefore, it is still possible to file applications under article 27 letter (a) regulating the intra-company work permit for managers and highly skilled staff. The new provisions overlap with those of the existing highly skilled migrant program. The immigration authority is expected to issue guidelines soon to clarify the differences between the two procedures.

Unlike the standard intra-company permit, the new ICT permit allows non-EU workers to work in other EU countries for companies of the same group without needing to obtain new visas.

The Decree does not apply to researchers, students, autonomous workers, or workers posted under Directives 1996/71 and 2014/67.

What are the steps for obtaining an ICT Work Permit?

  1. The host company files the application at the Immigration Office (Sportello Unico). The company must submit supporting documents within 10 days.
  2. The Immigration Office, if all conditions are met, issues the permit within 45 days.
  3. The ICT Worker applies for the visa at the Italian consulate of his or her place of residence.
  4. Within 8 days of entry into Italy, the worker submits the application for ICT permit of stay (permesso di soggiorno) at the Immigration Office.
  5. The Police (Questura) issue the ICT permit of stay within 45 days of application.

ICT Workers can bring family members for the period of their assignments in Italy.

The immigration law already provided for an intra-company work permit, regulated by article 27(a). Below is a comparative table showing the differences between the two permits.

New ICT Work Permit

Art. 27 Quinques

Managers/Highly Skilled Workers

Art.27(A) Permit

Filing Entity

 

Seniority

Host company established in Italy

 

3 months

 

Host company established in Italy

 

6 months

Maximum Validity 3 years 5 years
Cooling of Period 3 months No
Contract of Stay No Yes
Validity in Other EU States Yes No
Obligation to Register & Apply for Residence Permit Yes Yes
Family Allowed Yes, regardless of duration of the assignment Yes, but only for assignments of 1 year or more
Local Hire Not possible Possible at the host company at the end of the first assignment period or within the maximum assignment length – 5 years

2017 Immigrant Quota Decree Expected Soon

The Italian government is working on the annual decree (decreto-flussi) that will determine the number of work authorizations (quotas) that will be available in 2017 for different categories of foreign citizens wishing to work in Italy.

As background, immigration for work purposes in Italy is based on a quota system that is fixed annually by means of the decreto-flussi. This quota decree sets the numerical limits for each category of worker/citizen allowed to apply for a work permit. Quotas do not apply to certain categories of workers.

As of now, the number of “quotas” for 2017 is thought to be no more than 30,000. At least half of these will be reserved for foreigners seeking entry for the purpose of seasonal work. Several quotas will be reserved for foreign citizens who already have residence permits in Italy (e.g., for study or seasonal work) and are intending to convert them into permits that would allow them to be employed in Italy full-time.

The remaining numbers will be for self-employment and special categories of foreigners (such as South American citizens with Italian ancestors or workers who have completed a specific training in their countries of residence).

The 2017 quota decree is not expected to be surprising or much different from the quota decrees issued since 2011. In fact, the last quotas for subordinate employment were issued in 2010, and since then no further quotas for foreign citizens residing abroad seeking entry for subordinate employment in Italy have been issued.

New Provisions on Foreign Seasonal Workers

New provisions on foreign seasonal workers entered into force on November 24, 2016, under Legislative Decree n. 203 of October 29, 2016, which has transposed Directive 2014/36/EU on the conditions of entry and stay of third-country nationals for the purpose of employment as seasonal workers. Further guidelines and clarifications were provided with circular letter no. 37 issued on December 16, 2016, by the Ministry of Labor and the immigration authority.

Together with the set of common rules on intra-corporate transferees, researchers, students, highly qualified workers, family reunification, and long-term residents, the EU Seasonal Workers Directive is part of EU common policy that aims to establish a framework for legal migration and to simplify and harmonize procedures within the EU.

The Directive is aimed at cutting the number of people working without authorization in seasonal jobs and overstaying, preventing exploitation, protecting the health and safety of seasonal workers, and facilitating the movement of these workers from and back to their home countries by facilitating the re-entry procedures for subsequent seasons.

The decree introduces several changes to the current regulation, easing the application procedures but at the same time imposing more severe penalties for employer noncompliance.

The most important new features in the modification of the current Italian regulation on seasonal workers include:

  • Work sectors defined as “seasonal” are those of agriculture and tourism only.
  • Procedures for multi-year work permit applications are easier:
    • The worker must demonstrate employment in seasonal work in Italy at least once in the previous five years (instead of two years).
    • The multi-year residence permit for seasonal work has a maximum three-year duration. For each year, the allowed stay is indicated, up to a maximum of nine months in a 12-month period.
    • The employer can apply for a multi-year work permit that entitles the worker to obtain subsequent entry visas more easily.
    • Each year of work authorization is valid for the time indicated in the job contract offered (not on the basis of previous work permits) and can be filed also by another employer (different from the one who first applied).
  • Labor market tests are no longer required, and the processing times are clarified (20 days for the issuance of a seasonal work permit).
  • Stricter requirements and rules on adequate accommodations are to be guaranteed by the employer.
  • A seasonal worker can accept another job offer in the seasonal sector if his or her contract for the year has expired but he or she has not yet used up the allowed nine months in a 12-month period (with no need to re-apply for a visa).
  • If the worker is offered a job (non-seasonal) and has already worked in Italy for at least three months, he or she may apply for conversion into a standard residence permit for work (within the quota limits).
  • Penalties for noncompliance with immigration regulations are as provided for under Italian immigration law, article 22, governing the general provisions on work permits for foreign nationals.
  • If the permit is revoked because of the employer’s noncompliance with labor and migration rules, the worker must receive compensation based on the salary set in the collective bargaining agreement.

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SPAIN

This article discusses the non-lucrative residence permit, which allows third-country nationals (foreign nationals not covered by the European Union legal framework) to live in Spain without performing labor activities.

The Spanish immigration legal framework regulates the non-lucrative residence permit allowing third-country nationals (foreign nationals not covered by the European Union legal framework) to live in Spain without performing labor activities.

Foreign nationals wishing to obtain this type of permit must meet four main requirements:

  • To be financially reliable, evidencing a regular monthly income of at least 2,130 euros for the principal and 532.51 euros for each dependent, if applicable.
  • Not to have a criminal background in the country/countries of residence during the last 5 years.
  • To hold private or public medical insurance coverage for Spain (including for hypothetical repatriation).
  • Not to have any of the illnesses/diseases listed in the international Sanitary Regulation of 2005 as serious conditions for public health.

In addition to these requirements, the applicant should not be in unlawful status in Spanish territory during the process and should not have signed a non-return agreement to Spain.

If the foreign national has fulfilled the above conditions, he or she may apply for the non-lucrative visa and residence permit at the Spanish consulate having jurisdiction over the applicant’s place of legal residence. The applications are currently being resolved in approximately 15 days (the statutory processing time is 3 months) and the applicant has one month to collect the visa from the notification of approval.

Once the foreign national is in Spain with a valid visa, he or she must apply for and collect a residence card, initially valid for one year. This type of permit can be extended for two consecutive periods of two years each provided the conditions that led to the initial approval are maintained. After five years of legal residence, the non-lucrative residence permit holder may apply for a long-term residence permit, provided the legal requirements are fulfilled.

Also, after one year of living in Spain with a non-lucrative permit, the visa-holder can apply for a residence permit allowing work, and the Labor Market Test will not be applicable.

Stays outside of Spain for more than 180 days in a year, either continuous or discontinuous, are grounds of cancellation of this permit.

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TURKEY

There has been an important change in citizenship rules.

With very little public discussion or notice, on January 12, 2017, amendments to Turkey’s citizenship regulations were published, creating a new category for acquisition of citizenship. The amended regulations relate to acquisition of citizenship based on a Council of Ministers decision (Law No. 5901, article 12). The amendment to article 20 of the regulations relates to a new category, based on that law’s subsection, which now allows certain foreign investors to be eligible to apply for Turkish citizenship.

The regulations do not specify procedures, but presumably this will still be handled by the same agency within the Interior Ministry in conjunction with the agencies referred to below for qualification evidence. The investor categories below qualify for citizenship applications (in lieu of the residence requirement or marriage to a Turkish national), but all other restrictions, such as for health and public security reasons, appear to remain.

The regulations now allow the following categories of investors to be eligible to pursue Turkish citizenship:

  1. The applicant has invested US $2 million as a free capital investment (as proven to the Ministry of Economy);
  2. The applicant has invested US $1 million in real estate in Turkey, bought with a deed restriction that blocks selling for three years (as proven to the Ministry of Environment and Urbanization;
  3. The applicant has provided employment for 100 employees (as proven to the Ministry of Labor);
  4. The applicant has invested US $3 million for three years with banks active in Turkey (as proven to the Committee on Banking Supervision); or
  5. The applicant has invested in the Turkish government’s debt instruments of US $3 million bought with a deed restriction that blocks selling for three years (as proven to the Under-Secretariat for the Treasury).

Given the current state of affairs in Turkey, the presumption is that the majority of applicants that take advantage of the new rules will be from conflict zone countries such as Syria or Iraq. Whether additional categories may be implemented specifically for Syrians is not yet publicly confirmed.

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UNITED KINGDOM

This article briefly notes hot topics for 2017.

There are a number of important immigration changes coming in 2017. Article 50 may or may not be triggered in March and with it the beginning of negotiations on the UK’s future relationship with the EU. Whatever the eventual outcome, immigration will feature prominently; Home Secretary Amber Rudd has already indicated her desire to introduce further restrictions for non-EU nationals at the Tory party conference, and a consultation is anticipated in the new year. The Immigration Skills Charge is expected to be introduced starting in April 2017 for all sponsors of Tier 2 migrants.

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Entry Ban: FAQs – Updated 02/10/2017

These updated FAQs reflect the situation with regard to President Trump’s executive order, “Protecting the Nation From Terrorist Attacks by Foreign Nations,” banning entry to the United States by individuals traveling from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen, as of 5 pm Eastern Standard Time (EST) on February 10, 2017. New developments continue to rapidly change implementation of the order.

What are the key points of this Executive Order?

President Trump signed an Executive Order (EO) 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.” The EO became effective as of the date of signing, though it is currently subject to a Temporary Restraining Order (TRO) as discussed further below. Among the EO’s key provisions are:

  • 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.
  • 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.

What is an Executive Order? Can it be challenged?

Does the EO change the law or regulations?

While the president has the authority to issue such orders if the administration deems the action to be in the public interest, the EO does not change, replace, or repeal existing statutes (laws) or regulations.

Legal challenges have already been made to provisions of the EO. Many believe that wide sweeping bans such as those on refugee admissions and visa issuance effectively discriminate against individuals on a religious basis, as all the countries are predominantly Muslim.

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 after they have landed at a U.S. airport with valid visas, including green card holders. On Friday, February 3, 2017, Judge James Robart of the U.S. District Court for the Western District of Washington, in Seattle, issued a TRO [http://cdn.ca9.uscourts.gov/datastore/general/2017/02/03/17-141_TRO_order.pdf] that temporarily blocks the government from enforcing the travel ban at all. Several other federal courts have also issued stays or TROs. In light of the Western District of Washington TRO, which applies nationwide, DHS announced on February 4 that it has “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 ]. For the moment, therefore, the entry ban is not in effect, and travelers from the affected countries are being allowed to enter the United States. The briefing schedule for the appeal before the Ninth Circuit that was also put out on February 9 [https://cdn.ca9.uscourts.gov/datastore/general/2017/02/09/unpublished_procedural_order.pdf ] has the opening brief due on March 3, 2017, the answering brief due on March 24, and the optional reply brief scheduled for March 29.

There have been reports that the Administration is in the process of drafting language for a revised version of the EO which they believe would be more likely to survive judicial review [http://www.nbcnews.com/news/us-news/white-house-rewriting-trump-s-controversial-travel-ban-order-sources-n719356?cid=par-twitter-feed_20170210 ]. It is not yet clear exactly what such a revised EO would say.

There were also reports that the government might also seek an emergency stay from the Supreme Court [http://www.scotusblog.com/2017/02/9th-circuit-keeps-trumps-immigration-order-hold/%20], or from Justice Anthony Kennedy as Circuit Justice for the Ninth Circuit, or seek en banc review at the Ninth Circuit (that is, review by the whole court or a larger 11-judge panel), but none of these things appear to have happened as of 5 pm EST on February 9.  If such an emergency stay is granted by Justice Kennedy, by the Supreme Court as a whole, or by the en banc Ninth Circuit, the federal government will presumably resume enforcement of the travel ban immediately.

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.

DOS had also indicated that all visas already issued to those within the scope of the EO 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, however, DOS indicated that it had lifted the provisional revocation, and that the visas were now valid again where 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 the EO are not subject to a TRO or stay, CBP officers at border crossings, U.S. airports, and pre-flight inspection at certain foreign airports are not permitted to admit individuals who are nationals of designated countries or allow them to enter the United States, even if they have a facially valid visa.

Who is affected by the 90-day ban?

This ban applies to nationals of the seven (7) designated countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.

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?

It is not entirely clear, but the answer seems to be that the ban does not apply to dual nationals, at least in most instances and at least for the time being.

The EO, as written, does appear to include those born in one of the designated countries even if they do not currently hold a passport from that country or no longer consider themselves a citizen of that country. Keep in mind that “country of birth” is listed on permanent resident cards and is usually listed on one’s passport and that CBP and DOS consular officers review these documents.

However, on the afternoon of January 31, 2017, DHS Secretary Kelly held a press conference on the travel ban or, as he described it, a “temporary pause” on visa issuance and admission. On the question of the impact of dual nationality, acting CBP Commissioner Kevin McAleenan indicated that the individual would be evaluated based upon the passport presented and not on his or her “dual national” status. The CBP FAQ regarding the EO [https://www.cbp.gov/border-security/protecting-nation-foreign-terrorist-entry-united-states] similarly indicates that “Travelers are being treated according to the travel document that they present.” The State Department also issued a bulletin at one point indicating that travel by dual nationals with a valid U.S. visa in a passport from an unrestricted country was not restricted, although that bulletin does not appear to be available on their web site at this time because it has been replaced by their announcement of compliance with the TRO. Based on these announcements, an individual presenting a passport from a non-designated country would not be impacted by the EO’s restrictions, even if he or she also holds nationality in a designated country.

Statements by U.S. embassies (e.g., in London) and the governments of Canada and Australia are consistent with these indications that the restriction does not apply to dual nationals who present a passport from a non-designated country. For example, the U.S. embassy in London has stated on its website that “dual nationals of the United Kingdom and one of [the designated] countries are exempt from the Executive Order when travelling on a valid United Kingdom passport and U.S. visa.” Anecdotal reports from U.S.-Canada land border entry points also show that CBP is not applying the ban to Canadian dual nationals from the designated countries.

In a DOS cable to embassies and consulates worldwide, however, the DOS had initially provided the following guidance on who is considered to be a dual national: those who “possess a current passport from the restricted country, have been denied [Electronic System for Travel Authorization (ESTA)] based on nationality in a designated country (but not on travel to the country without being a national of that country), or who have otherwise identified themselves as nationals of a restricted country including on a previous application or in an interview, including as a dual national.”

Also, when the ban was in effect, some airlines reportedly were not allowing people in these situations to board, and not issuing airline tickets.

Therefore, there may be exceptions to the manner in which dual nationals are treated upon entry to the United States dependent upon a number of circumstances. Until there is clearer amended guidance from the DOS, dual nationals should assume the ban could potentially apply to them under the circumstances noted in the DOS cable discussed above, and should consult an immigration attorney for individual advice before traveling into (or out of) the United States.

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

The Executive Order 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 the EO did not ban entry by LPRs.

The Ninth Circuit in its opinion denying a stay of the TRO pending appeal expressed doubt that Mr. McGahn’s guidance was in fact binding. Based on this guidance, however, and prior to the Ninth Circuit opinion, a federal judge hearing one of the other lawsuits against the ban had entered a permanent injunction against application of the ban to LPRs. Thus, this injunction may prevent application of the ban to LPRs even if some other executive-branch official declines to follow Mr. McGahn’s guidance.

In addition, as discussed below in the question about “exceptions” to the ban, the EO includes a provision that allows the issuance of “visas or other immigration benefits” to affected individuals on a “case-by-case basis, and when in the national interest.” On Sunday, January 29, 2017, prior to the “authoritative guidance” memo, DHS Secretary John Kelly issued a statement [https://www.dhs.gov/news/2017/01/29/statement-secretary-john-kelly-entry-lawful-permanent-residents-united-states] that attempts to clarify this provision as relates to lawful permanent residents. In this statement, Secretary Kelly notes, “Absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status will be a dispositive factor in our case-by-case determinations.”

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 seven countries. Travel to one of the seven 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 been reports of airlines refusing to board individuals who appear to be affected by the EO’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. The temporary halt in enforcing the ban could end at any time (while it now appears reasonably likely that it will last at least through the March 29 conclusion of briefing on the appeal pending before the Ninth Circuit, this is not certain, since action by the Supreme Court or the Ninth Circuit en banc could come before then). We caution affected individuals not to rely on the court’s temporary halt when making a decision to travel abroad, at least not without consulting with an immigration attorney beforehand.

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 in the event of the ban coming back into effect, CBP officers will 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?

As of Saturday January 28, 2017, the U.S. District Court for the Eastern District of New York issued an emergency stay of certain provisions of the EO. Several other federal courts have issued similar stays. On Friday, February 3, 2017, the U.S. District Court for the Western District of Washington also issued a temporary restraining order (TRO) against the application of several sections of the EO relating to the travel ban [http://cdn.ca9.uscourts.gov/datastore/general/2017/02/03/17-141_TRO_order.pdfhttp://cdn.ca9.uscourts.gov/datastore/general/2017/02/03/17-141_TRO_order.pdf]. Thus, the U.S. government is currently restrained from applying the travel ban. This TRO applies nationwide. The Western District of Washington TRO allows further travel to the United States while it is in effect.

The EO as written permits DOS and DHS to issue visas, or other immigration benefits, to affected individuals on a “case-by-case” basis and when in the “national interest.” It was this authority that DHS has used to allow admission of most LPRs, as discussed above. At this time, it is not clear how such requests will be adjudicated in other contexts or what factors the agencies will consider. 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. 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 such individuals, 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. The EO does not change the existing immigration law, including the right to apply for asylum.

How are the U.S. consulates implementing the ban on visas?

According to credible sources, 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. The EO has an exception for nationals of the seven designated countries who are applying for A, G, NATO, C-2, and C-3 visas; presumably affected individuals seeking A, G, NATO, C-2, and C-3 visas may still apply for and expect to receive these visas, if otherwise eligible.

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 is in effect, however, visa processing appears to have resumed. The State Department has 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 the EO.

How will the EO 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, 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). That is, even if the TRO is stayed or reversed in some way, 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 will be subject to further guidance.

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

The EO 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 recent blog post by Cyrus D. Mehta [http://blog.cyrusmehta.com/2017/02/resisting-president-trumps-visa-revocations.html] . During the period when the EO 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?

The EO 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 (which would be April 27, 2017). Instead, DHS is required to report whether countries have provided information “needed … for the adjudication of any … benefit under the INA … to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat.” If the country does not report or presumably if any such reporting is not found to be adequate, the country then would have 60 days to comply in providing such information or the travel ban would become indefinite.

Will the ban be extended to include other countries?

The EO’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 “comply” and 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 has been stayed by the TRO.

For most refugees, the suspension would be at least 120 days. For Syrian refugees, the ban on admission would be indeterminate. The EO states that refugee processing and admission of Syrian refugees shall cease until such time as the President has determined that sufficient changes have been made to the program to ensure its alignment with the national interest. There is no further clarification of what may be deemed “sufficient” or “national interest.” This provision effectively eliminates the processing of refugee applications by and admission of Syrian refugees.

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.

Are certain refugees or countries a priority?

The EO states that once the USRAP starts allowing refugees to enter, DOS is to prioritize refugees with religious-based claims, if the refugee’s religion is a minority religion in the individual’s country of nationality. The EO does not address the issue of subsects or minority groups within a country’s predominant religion.

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. If the suspension continues for more than 120 days, it is questionable whether the United States will admit any refugees during the 2017 fiscal year.

Are there any exceptions to this ban on refugee admissions?

Yes. As mentioned above, as of Friday, February 3, 2017, the U.S. District Court for the Western District of Washington issued a TRO restraining the entry ban sections of the EO. Thus, the U.S. government is restrained from barring the admission of refugees seeking admission as part of the USRAP, holders of valid immigrant and nonimmigrant visas, and other individuals from the seven designated countries. This TRO applies nationwide. Several other federal courts have also issued stays.

The EO as written permits DOS and DHS to admit individuals as refugees on a case-by-case basis when in the national interest.

Even during the 120-day suspension period, the DOS and DHS may continue to process and admit refugees with religious-based claims, if the religion is a minority religion in the country of nationality.

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

The EO 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.

The Executive Order is at https://www.whitehouse.gov/the-press-office/2017/01/27/executive-order-protecting-nation

 

Entry Ban: Frequently Asked Questions – Updated 02/06/2017

 

These updated FAQs reflect the situation with regard to President Trump’s executive order, “Protecting the Nation From Terrorist Attacks by Foreign Nations,” banning entry to the United States by individuals traveling from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen, as of 1 pm Eastern Standard Time (EST) on February 6, 2017. New developments continue to rapidly change implementation of the order.

What are the key points of this Executive Order?

President Trump signed an Executive Order (EO) 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.” The EO became effective as of the date of signing, though it is currently subject to a Temporary Restraining Order (TRO) as discussed further below. Among the EO’s key provisions are:

  • 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.
  • 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.

What is an Executive Order? Can it be challenged?

Does the EO change the law or regulations?

While the president has the authority to issue such orders if the administration deems the action to be in the public interest, the EO does not change, replace, or repeal existing statutes (laws) or regulations.

Legal challenges have already been made to provisions of the EO. Many believe that wide sweeping bans such as those on refugee admissions and visa issuance effectively discriminate against individuals on a religious basis, as all the countries are predominantly Muslim.

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 after they have landed at a U.S. airport with valid visas, including green card holders. On Friday, February 3, 2017, Judge James Robart of the U.S. District Court for the Western District of Washington, in Seattle, issued a TRO [http://cdn.ca9.uscourts.gov/datastore/general/2017/02/03/17-141_TRO_order.pdf] that temporarily blocks the government from enforcing the travel ban at all. Several other federal courts have also issued stays or TROs. In light of the Western District of Washington TRO, which applies nationwide, DHS announced on February 4 that it has “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]. For the moment, therefore, the entry ban is not in effect, and travelers from the affected countries are being allowed to enter the United States.

The federal government has appealed to the Court of Appeals for the Ninth Circuit and has asked the Court of Appeals for an emergency stay of the Western District of Washington TRO. There were reports that the government might also seek an emergency stay from the Supreme Court, or from Justice Anthony Kennedy as Circuit Justice for the Ninth Circuit, but this does not appear to have happened as of 1 pm EST on February 6. The government’s request for an immediate administrative stay pending review of the emergency motion for stay was denied by the Court of Appeals [http://cdn.ca9.uscourts.gov/datastore/general/2017/02/05/17-35105.pdf ], so the TRO remains in effect while the emergency motion for stay is being briefed. The State of Washington’s brief [http://cdn.ca9.uscourts.gov/datastore/general/2017/02/06/17-35105%20Washington%20Opposition.pdf] was filed overnight before 1 am on February 6, and the federal government’s reply brief is due by 3 pm PST, that is, 6 pm EST, on February 6. If the emergency motion for stay is granted, the federal government will presumably resume enforcement of the travel ban immediately. If the motion is denied, then the TRO would remain in effect until the District Court decides whether to issue a preliminary injunction (which if granted would also have the effect of preventing enforcement of the travel ban), or until the Court of Appeals decides the appeal, or until the Supreme Court, or Justice Anthony Kennedy, issues a stay.

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.

DOS had also indicated that all visas already issued to those within the scope of the EO 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, however, DOS indicated that it had reinstated the provisionally revoked visas [http://time.com/4660445/state-department-visa-reverse-cancellation/].

At times when the relevant sections of the EO are not subject to a TRO or stay, U.S. Customs and Border Protection (CBP) officers at border crossings, U.S. airports, and pre-flight inspection at certain foreign airports are not permitted to admit individuals who are nationals of designated countries or allow them to enter the United States, even if they have a facially valid visa.

Who is affected by the 90-day ban?

This ban applies to nationals of the seven (7) designated countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.

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?

It is not entirely clear. The EO, as written, does appear to include those born in one of the designated countries even if they do not currently hold a passport from that country or no longer consider themselves a citizen of that country. Keep in mind that “country of birth” is listed on permanent resident cards and is usually listed on one’s passport and that CBP and DOS consular officers review these documents.

However, on the afternoon of January 31, 2017, DHS Secretary Kelly held a press conference on the travel ban or, as he described it, a “temporary pause” on visa issuance and admission. On the question of the impact of dual nationality, acting CBP Commissioner Kevin McAleenan indicated that the individual would be evaluated based upon the passport presented and not on his or her “dual national” status. The CBP FAQ regarding the EO [https://www.cbp.gov/border-security/protecting-nation-foreign-terrorist-entry-united-states] similarly indicates that “Travelers are being treated according to the travel document that they present.” Presumably, an individual presenting a passport from a non-designated country would not be impacted by the EO’s restrictions, even if he or she also holds nationality in a designated country.

Statements by U.S. embassies (e.g., in London) and the governments of Canada and Australia are consistent with Secretary Kelly’s indication that the restriction does not apply to dual nationals who present a passport from a non-designated country. For example, the U.S. embassy in London has stated on its website that “dual nationals of the United Kingdom and one of [the designated] countries are exempt from the Executive Order when travelling on a valid United Kingdom passport and U.S. visa.” Anecdotal reports from U.S.-Canada land border entry points also show that CBP is not applying the ban to Canadian dual nationals from the designated countries.

This “clarification,” however, may conflict with a DOS cable to embassies and consulates worldwide in which the DOS provides the following guidance on who is considered to be a dual national: those who “possess a current passport from the restricted country, have been denied [Electronic System for Travel Authorization (ESTA)] based on nationality in a designated country (but not on travel to the country without being a national of that country), or who have otherwise identified themselves as nationals of a restricted country including on a previous application or in an interview, including as a dual national.”

Also, when the ban was in effect, some airlines reportedly were not allowing people in these situations to board, and not issuing airline tickets. Those traveling on non-covered passports may still be unable to get visas if they are known to be dual nationals of a covered country, and there is some risk that non-Canadian dual nationals with nonimmigrant visas (NIVs) might not be admitted if their NIVs are again provisionally revoked and CBP realizes their NIVs have been provisionally revoked.

Therefore, there may be exceptions to the manner in which dual nationals are treated upon entry to the United States dependent upon a number of circumstances. Until there is amended guidance from the DOS, dual nationals should assume the ban could potentially apply to them under the circumstances noted in the DOS cable discussed above, and should consult an immigration attorney for individual advice before traveling into (or out of) the United States.

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

The Executive Order 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 the EO did not ban entry by LPRs. Based on this guidance, a federal judge hearing one of the lawsuits against the ban entered a permanent injunction against application of the ban to LPRs.

In addition, as discussed below in the question about “exceptions” to the ban, the EO includes a provision that allows the issuance of “visas or other immigration benefits” to affected individuals on a “case-by-case basis, and when in the national interest.” On Sunday, January 29, 2017, prior to the “authoritative guidance” memo, DHS Secretary John Kelly issued a statement [https://www.dhs.gov/news/2017/01/29/statement-secretary-john-kelly-entry-lawful-permanent-residents-united-states] that attempts to clarify this provision as relates to lawful permanent residents. In this statement, Secretary Kelly notes, “Absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status will be a dispositive factor in our case-by-case determinations.”

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 seven countries. Travel to one of the seven 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 have been reports of airlines refusing to board individuals who appear to be affected by the EO’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. The temporary halt in enforcing the ban could end at any time. We caution affected individuals not to rely on the court’s temporary halt when 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 currently outside the United States 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. 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 CBP officers will be overwhelmed in the coming days 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?

As of Saturday January 28, 2017, the U.S. District Court for the Eastern District of New York issued an emergency stay of certain provisions of the EO. On Friday, February 3, 2017, the U.S. District Court for the Western District of Washington also issued a temporary restraining order (TRO) against the application of the EO [http://cdn.ca9.uscourts.gov/datastore/general/2017/02/03/17-141_TRO_order.pdfhttp://cdn.ca9.uscourts.gov/datastore/general/2017/02/03/17-141_TRO_order.pdf]. Thus, the U.S. government is restrained from barring the admission of refugees seeking admission as part of the USRAP, holders of valid immigrant and nonimmigrant visas, and other individuals from the seven designated countries, and may be restrained from applying the travel ban in any other way as well. This TRO applies nationwide. Several other federal courts have issued similar stays. The Western District of Washington TRO allows further travel to the United States while it is in effect.

The EO as written permits DOS and DHS to issue visas, or other immigration benefits, to affected individuals on a “case-by-case” basis and when in the “national interest.” It was this authority that DHS has used to allow admission of most LPRs, as discussed above. At this time, it is not clear how such requests will be adjudicated in other contexts or what factors the agencies will consider. Anyone seeking to make such a request 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. 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 such individuals, 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. The EO does not change the existing immigration law, including the right to apply for asylum.

How are the U.S. consulates implementing the ban on visas?

According to credible sources, the DOS issued a cable to all embassies and consular posts to suspend the issuance of nonimmigrant and immigrant visas for nationals of designated countries. The EO has an exception for nationals of the seven designated countries who are applying for A, G, NATO, C-2, and C-3 visas; presumably affected individuals seeking A, G, NATO, C-2, and C-3 visas may still apply for and expect to receive these visas, if otherwise eligible.

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.” It is unclear whether DOS will refund visa fees (which are normally valid for one year), although refunds appear unlikely. In light of the TRO, it is possible that visa processing may resume while the TRO is in effect.

The DOS, through its cable, has reiterated that the ban applies to “dual nationals,” which DOS notes includes those who “possess a current passport from the restricted country, having been denied ESTA based on nationality in a designated country (but not on travel to the country without being a national of that country), or who have otherwise identified themselves as nationals of a restricted country including on a previous application or in an interview, including as a dual national.” Please see item above on conflicting reports on the application of the ban to dual nationals.

With regard to immigrant visas for those affected by the ban, the DOS initially indicated that it would cancel currently scheduled interviews and will not schedule immigrant visa interviews for March or April. However, in light of the TRO, interviews may resume.

How will the EO 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, 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). That is, it 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 will be subject to further guidance.

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

The EO only affects those who are applying for visas (nonimmigrant and immigrant), seeking entry, or actively applying for an immigration benefit (e.g., change or extension of status, adjustment to permanent resident, naturalization, and other benefits noted above).

Might the ban be longer than 90 days?

The EO 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 (which would be April 27, 2017). Instead, DHS is required to report whether countries have provided information “needed … for the adjudication of any … benefit under the INA … to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat.” If the country does not report or presumably if any such reporting is not found to be adequate, the country then would have 60 days to comply in providing such information or the travel ban would become indefinite.

Will the ban be extended to include other countries?

The EO’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 “comply” and 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 are affected.

For most refugees, the suspension is at least 120 days. For Syrian refugees, the ban on admission is indeterminate. The EO states that refugee processing and admission of Syrian refugees shall cease until such time as the President has determined that sufficient changes have been made to the program to ensure its alignment with the national interest. There is no further clarification of what may be deemed “sufficient” or “national interest.” This provision effectively eliminates the processing of refugee applications by and admission of Syrian refugees.

How long is the suspension of USRAP?

The USRAP is 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.

Are certain refugees or countries a priority?

The EO states that once the USRAP starts allowing refugees to enter, DOS is to prioritize refugees with religious-based claims, if the refugee’s religion is a minority religion in the individual’s country of nationality. The EO does not address the issue of subsects or minority groups within a country’s predominant religion.

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. If the suspension continues for more than 120 days, it is questionable whether the United States will admit any refugees during the 2017 fiscal year.

Are there any exceptions to this ban on refugee admissions?

Yes. As mentioned above, as of Friday, February 3, 2017, the U.S. District Court for the Western District of Washington issued a TRO restraining the entry ban sections of the EO. Thus, the U.S. government is restrained from barring the admission of refugees seeking admission as part of the USRAP, holders of valid immigrant and nonimmigrant visas, and other individuals from the seven designated countries. This TRO applies nationwide. Several other federal courts have also issued stays.

The EO as written permits DOS and DHS to admit individuals as refugees on a case-by-case basis when in the national interest.

Even during the 120-day suspension period, the DOS and DHS may continue to process and admit refugees with religious-based claims, if the religion is a minority religion in the country of nationality.

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

The EO 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.

The Executive Order is at https://www.whitehouse.gov/the-press-office/2017/01/27/executive-order-protecting-nation-foreign-terrorist-entry-united-states. There may be further updates to these FAQs as the situation develops.

Updated FAQ on Travel Ban

The following is an updated version of one adapted from frequently asked questions (FAQs) published by ABIL member firm Maggio & Kattar in response to President Trump’s executive order, “Protecting the Nation From Terrorist Attacks by Foreign Nations,” banning entry to the United States by individuals traveling from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen. These updated FAQs reflect the situation as of February 3, 2017. New developments continue to rapidly change implementation of the order.

What are the key points of this Executive Order?

President Trump signed an Executive Order (EO) the afternoon of Friday, January 27, 2017, which, according to its introduction, is intended to “protect Americans.” The EO became effective as of the date of signing. Among the EO’s key provisions are:

  • 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.
  • 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.

What is an Executive Order? Can it be challenged?

Does the EO change the law or regulations?

While the president has the authority to issue such orders if the administration deems the action to be in the public interest, the EO does not change, replace, or repeal existing statutes (laws) or regulations.

Legal challenges have already been made to provisions of the EO. Many believe that wide sweeping bans such as those on refugee admissions and visa issuance effectively discriminate against individuals on a religious basis, as all the countries are predominantly Muslim.

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 blocks the government from sending people out of the country after they have landed at a U.S. airport with valid visas, including green card holders. On Friday, February 3, 2017, Judge James Robart of the U.S. District Court for the Western District of Washington, in Seattle, issued a temporary restraining order [http://q13fox.com/2017/02/03/seattle-judge-temporarily-halts-donald-trump-immigration-refugee-order/%20] that should temporarily block the government from enforcing the travel ban at all. Several other federal courts have issued similar stays.

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.

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.

DOS has also indicated that all visas already issued to those within the scope of the EO have been 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]

U.S. Customs and Border Protection (CBP) officers at border crossings, U.S. airports, and pre-flight inspection at certain foreign airports are not permitted to admit individuals who are nationals of designated countries or allow them to enter the United States, even if they have a facially valid visa.

Who is affected by the 90-day ban?

This ban applies to nationals of the seven (7) designated countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.

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?

It is not entirely clear. The EO, as written, does appear to include those born in one of the designated countries even if they do not currently hold a passport from that country or no longer consider themselves a citizen of that country. Keep in mind that “country of birth” is listed on permanent resident cards and is usually listed on one’s passport and that CBP and DOS consular officers review these documents.

However, on the afternoon of January 31, 2017, DHS Secretary Kelly held a press conference on the travel ban or, as he described it, a “temporary pause” on visa issuance and admission. On the question of the impact of dual nationality, acting CBP Commissioner Kevin McAleenan indicated that the individual would be evaluated based upon the passport presented and not on his or her “dual national” status. Presumably, an individual presenting a passport from a non-designated country would not be impacted by the EO’s restrictions, even if he or she also holds nationality in a designated country.

Statements by U.S. embassies (e.g., in London) and the governments of Canada and Australia are consistent with Secretary Kelly’s indication that the restriction does not apply to dual nationals who present a passport from a non-designated country. For example, the U.S. embassy in London has stated on its website that “dual nationals of the United Kingdom and one of [the designated] countries are exempt from the Executive Order when travelling on a valid United Kingdom passport and U.S. visa.” Anecdotal reports from U.S.-Canada land border entry points also show that CBP is not applying the ban to Canadian dual nationals from the designated countries.

This “clarification,” however, may conflict with a recent DOS cable to embassies and consulates worldwide in which the DOS provides the following guidance on who is considered to be a dual national: those who “possess a current passport from the restricted country, have been denied [Electronic System for Travel Authorization (ESTA)] based on nationality in a designated country (but not on travel to the country without being a national of that country), or who have otherwise identified themselves as nationals of a restricted country including on a previous application or in an interview, including as a dual national.”

Also, as of press time, some airlines reportedly were not allowing people in these situations to board, and not issuing airline tickets. Those traveling on non-covered passports may still be unable to get visas if they are known to be dual nationals of a covered country, and there is some risk that non-Canadian dual nationals with nonimmigrant visas (NIVs) might not be admitted if CBP realizes their NIVs have technically been provisionally revoked.

Therefore, there may be exceptions to the manner in which dual nationals are treated upon entry to the United States dependent upon a number of circumstances. Until there is amended guidance from the DOS, dual nationals should assume the ban could apply to them under the circumstances noted in the DOS cable discussed above.

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

The Executive Order 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 the EO did not ban entry by LPRs. Based on this guidance, a federal judge hearing one of the lawsuits against the ban entered a permanent injunction against application of the ban to LPRs.

In addition, as discussed below in the question about “exceptions” to the ban, the EO includes a provision that allows the issuance of “visas or other immigration benefits” to affected individuals on a “case-by-case basis, and when in the national interest.” On Sunday, January 29, 2017, prior to the “authoritative guidance” memo, DHS Secretary John Kelly issued a statement [https://www.dhs.gov/news/2017/01/29/statement-secretary-john-kelly-entry-lawful-permanent-residents-united-states] that attempts to clarify this provision as relates to lawful permanent residents. In this statement, Secretary Kelly notes, “Absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status will be a dispositive factor in our case-by-case determinations.”

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 seven countries. Travel to one of the seven 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 have been reports of airlines refusing to board individuals who appear to be affected by the EO’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, they will most likely not be able to return. The temporary halt in enforcing portions of the ban, discussed below, could end at any time. We caution affected individuals not to rely on the court’s temporary halt when making a decision to travel abroad.

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

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 currently outside the United States 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. 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 CBP officers will be overwhelmed in the coming days 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?

As of Saturday January 28, 2017, the U.S. District Court for the Eastern District of New York issued an emergency stay of certain provisions of the EO. On Friday, February 3, 2017, the U.S. District Court for the Western District of Washington also issued a temporary restraining order against the application of the EO [http://www.seattletimes.com/seattle-news/politics/federal-judge-in-seattle-halts-trumps-immigration-order/http://www.seattletimes.com/seattle-news/politics/federal-judge-in-seattle-halts-trumps-immigration-order/%20], the text of which had not yet been made public at the time of this update. Thus, the U.S. government is restrained from barring the admission of refugees seeking admission as part of the USRAP, holders of valid immigrant and nonimmigrant visas, and other individuals from the seven designated countries, and may be restrained from applying the travel ban in any other way as well. This stay applies nationwide. Several other federal courts have issued similar stays.

At least one of the stays, issued in the District of Massachusetts, may potentially allow future flights to the United States, since CBP has been instructed by the court in that case to advise airlines with flights to Logan Airport that travelers who would otherwise be allowed into the United States will not be refused admission on account of the EO. The Western District of Washington stay may also allow further travel to the United States.

The EO as written permits DOS and DHS to issue visas, or other immigration benefits, to affected individuals on a “case-by-case” basis and when in the “national interest.” It was this authority that DHS has used to allow admission of most LPRs, as discussed above. At this time, it is not clear how such requests will be adjudicated in other contexts or what factors the agencies will consider. Anyone seeking to make such a request 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. 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 such individuals, 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. The EO does not change the existing immigration law, including the right to apply for asylum.

How are the U.S. consulates implementing the ban on visas?

According to credible sources, the DOS issued a cable to all embassies and consular posts to suspend the issuance of nonimmigrant and immigrant visas for nationals of designated countries. The EO has an exception for nationals of the seven designated countries who are applying for A, G, NATO, C-2, and C-3 visas; presumably affected individuals seeking A, G, NATO, C-2, and C-3 visas may still apply for and expect to receive these visas, if otherwise eligible.

Consulates will stop scheduling and conducting interviews of affected individuals. They also will stop issuing (printing) visas for anyone who was already interviewed but who has not yet received the visa. Courier services will be instructed to return the unadjudicated applications to the affected individuals. Consular posts are beginning to post alerts on their websites to advise individuals of the suspension of visa issuance “effective immediately and until further notification.” It is unclear whether DOS will refund visa fees (which are normally valid for one year), although refunds appear unlikely.

The DOS, through this cable, has reiterated that the ban applies to “dual nationals,” which DOS notes includes those who “possess a current passport from the restricted country, having been denied ESTA based on nationality in a designated country (but not on travel to the country without being a national of that country), or who have otherwise identified themselves as nationals of a restricted country including on a previous application or in an interview, including as a dual national.” Please see item above on conflicting reports on the application of the ban to dual nationals.

With regard to immigrant visas for those affected by the ban, the DOS will cancel currently scheduled interviews and will not schedule immigrant visa interviews for March or April.

How will the EO 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, 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). That is, it 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 will be subject to further guidance.

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

The EO only affects those who are applying for visas (nonimmigrant and immigrant), seeking entry, or actively applying for an immigration benefit (e.g., change or extension of status, adjustment to permanent resident, naturalization, and other benefits noted above).

Might the ban be longer than 90 days?

The EO 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 (which would be April 27, 2017). Instead, DHS is required to report whether countries have provided information “needed … for the adjudication of any … benefit under the INA … to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat.” If the country does not report or presumably if any such reporting is not found to be adequate, the country then would have 60 days to comply in providing such information or the travel ban would become indefinite.

Will the ban be extended to include other countries?

The EO’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 “comply” and 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 are affected.

For most refugees, the suspension is at least 120 days. For Syrian refugees, the ban on admission is indeterminate. The EO states that refugee processing and admission of Syrian refugees shall cease until such time as the President has determined that sufficient changes have been made to the program to ensure its alignment with the national interest. There is no further clarification of what may be deemed “sufficient” or “national interest.” This provision effectively eliminates the processing of refugee applications by and admission of Syrian refugees.

How long is the suspension of USRAP?

The USRAP is 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.

Are certain refugees or countries a priority?

The EO states that once the USRAP starts allowing refugees to enter, DOS is to prioritize refugees with religious-based claims, if the refugee’s religion is a minority religion in the individual’s country of nationality. The EO does not address the issue of subsects or minority groups within a country’s predominant religion.

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. If the suspension continues for more than 120 days, it is questionable whether the United States will admit any refugees during the 2017 fiscal year.

Are there any exceptions to this ban on refugee admissions?

Yes. As mentioned above, as of Saturday, January 28, 2017, the U.S. District Court for the Eastern District of New York issued an emergency stay of the EO. Thus, the U.S. government is restrained from barring the admission of refugees seeking admission as part of the USRAP, holders of valid immigrant and nonimmigrant visas, and other individuals from the seven designated countries. This stay applies nationwide. Several other federal courts have issued similar stays.

The EO as written permits DOS and DHS to admit individuals as refugees on a case-by-case basis when in the national interest.

Even during the 120-day suspension period, the DOS and DHS may continue to process and admit refugees with religious-based claims, if the religion is a minority religion in the country of nationality.

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

The EO 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.

The Executive Order is at https://www.whitehouse.gov/the-press-office/2017/01/27/executive-order-protecting-nation-foreign-terrorist-entry-united-states. There may be further updates to these FAQs as the situation develops.

February 2017 Immigration Update

Headlines:

  1. Trump Era Begins With Tumultuous First Week, Entry Ban – President Donald Trump’s tumultuous first week included a series of executive orders on immigration, refugees, and other issues. Among them was a temporary and immediate entry ban on people traveling to the United States from certain countries.
  2. Entry Ban: Frequently Asked Questions – Our firm has published frequently asked questions and answers based on ABIL member firm Maggio & Kattar in response to President Trump’s executive order banning entry to the United States by individuals traveling from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen.
  3. Reminder: USCIS Will Accept H-1B Petitions for FY 2018 Beginning April 1, 2017 – The Alliance of Business Immigration Lawyers recommends filing during the first five business days in April.
  4. USCIS Issues Final Rule on International Entrepreneurs – The final rule, effective July 17, 2017, adds 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.
  5. USCIS Extends TPS for Somalia – USCIS extended TPS for eligible nationals of Somalia for an additional 18 months, through September 17, 2018.
  6. USCIS Issues Guidance on Interpreters Brought to Domestic Field Office Interviews – USCIS issued new guidance on January 18, 2017, on the role and use of interpreters in domestic field office interviews, to be implemented May 1, 2017. USCIS said the policy memorandum is intended to help ensure that those who bring interpreters to certain interviews have competent language assistance.
  1. ABIL Global: Canada – Express Entry brings to the Canadian immigration world a new system designed to improve processing times and to give immigration officers the means to select from a large pool of candidates the top applicants for Canadian permanent residence, from among foreign nationals wishing to settle in a Canadian province other than Québec.
  2. Firm In The News…

 Details:

  1.  Trump Era Begins With Tumultuous First Week, Entry Ban

President Donald Trump’s tumultuous first week included a series of executive orders on immigration, refugees, and other issues. Among them was a temporary and immediate entry ban on people traveling to the United States from certain countries that resulted in unexpected detentions at U.S. airports; people blocked from boarding planes bound for the United States; confusion and contradictions among travelers, border agents, airline personnel, White House staff, and reporters; thousands protesting at U.S. airports; legal filings; and related court decisions.

Highlights follow of the immigration-related portions of the orders, and reaction:

Entry ban, refugee ban. President Trump signed an executive order on January 27, 2017, directing the Department of State to suspend refugee admissions for 120 days and impose an entry ban on individuals from certain countries. The order specifically suspends the entry of Syrian refugees as “detrimental to the interests of the United States,” and orders the suspension to continue “until such time as I have determined that sufficient changes have been made” to the refugee program to ensure that admission of Syrian refugees “is consistent with the national interest.” The order also cuts from 110,000 to 50,000 the number of refugees the United States will accept in this budget year, with exceptions for those claiming religious persecution who are of minority faiths in their countries. In the previous budget year, the United States accepted 84,995 refugees, which included 12,587 Syrians. The order allows some leeway for admissions “on a case-by-case basis.”

The order also suspends for 90 days entry to the United States of individuals from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen. The order cites as a rationale “foreign-born individuals” who “have been convicted of or implicated in terrorism-related crimes since September 11, 2001,” as a basis for the entry ban.

As a result of the order, dozens of people were initially detained at U.S. airports, including JFK International and others. Some received waivers to enter the United States, while others continued to be held, in what remained a fluid situation as of press time. Protests occurred at major airports around the country. There were reports of green card holders not being allowed back into the United States, and people with visas being stopped or turned back at international airports and not allowed to board their flights to the United States. On January 29, 2017, new Department of Homeland Secretary John Kelly issued a statement [https://www.dhs.gov/news/2017/01/29/statement-secretary-john-kelly-entry-lawful-permanent-residents-united-states] that green card holders from the seven affected countries would be granted waivers to return to the United States.

Emergency stay. One of those detained at JFK Airport was Hameed Khalid Darweesh, who had worked as an interpreter for the U.S. Army’s 101st Airborne Division and “saved countless U.S. service members’ lives,” according to the American Civil Liberties Union (ACLU). The ACLU and other organizations challenged the executive order on constitutional grounds. Although Mr. Darweesh and another plaintiff were released, Judge Ann Donnelly of the U.S. District Court for the Eastern District of New York issued a decision late on January 28, 2017, ordering that individuals from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen who are in the United States not be removed who have approved refugee applications, valid immigrant and nonimmigrant visas, and other legal authorizations to enter the United States. She said this was because the petitioners had a strong likelihood of success in establishing that their removal and “others similarly situated” would violate their rights to due process and equal protection under the U.S. Constitution and that there was imminent danger that, absent the stay of removal, there would be “substantial and irreparable injury to refugees, visa-holders, and other individuals from nations subject to the January 27, 2017 Executive Order.”

The White House subsequently issued a statement in reaction: “Saturday’s ruling does not undercut the President’s executive order. All stopped visas will remain stopped. All halted admissions will remain halted. All restricted travel will remain prohibited. The executive order is a vital action toward strengthening America’s borders…. The order remains in place.” President Trump told reporters that the ban was going “very nicely.”

Removal priorities, sanctuary penalties. President Trump signed a separate executive order on January 25, 2017, entitled “Enhancing Public Safety in the Interior of the United States.” The order directs agencies to employ “all lawful means to ensure the faithful execution of the immigration laws of the United States against all removable aliens.” The order prioritizes for removal those who have been convicted of, or charged with, any criminal offense; have committed acts that constitute a chargeable criminal offense; have engaged in fraud or willful misrepresentation in connection with any official matter or application before a government agency; have “abused” any program related to receipt of public benefits; are subject to a final order of removal but have not complied; or, in the judgment of an immigration officer, “otherwise pose a risk to public safety or national security.”

Reaction. Reaction to the executive orders worldwide, especially to the entry ban, was overwhelmingly negative. Twenty Nobel laureates and thousands of academics signed a letter of protest denouncing the executive order imposing the entry ban. Among other things, the letter says that the executive order “significantly damages American leadership in higher education and research.” The letter notes that research institutes host a significant number of researchers from the nations subjected to the restrictions. From Iran alone, for example, more than 3,000 students have received PhDs from U.S. universities in the past three years, the letter states. The executive order “limits collaborations with researchers from these nations by restricting entry of these researchers to the U.S. and can potentially lead to departure of many talented individuals who are current and future researchers and entrepreneurs in the U.S.,” the letter says, adding that the signers “strongly believe” that the immediate and long-term consequences of the order “do not serve our national interests.”

Technology companies also reacted, including Google, Apple, and others. Apple CEO Tim Cook sent a memo to employees that was circulated widely. In the memo, Mr. Cook said the entry ban “is not a policy we support,” and noted that Apple “reached out to the White House to explain the negative effect on our coworkers and our company.” The memo also said that “Apple would not exist without immigration, let alone thrive and innovate the way we do.” Netflix CEO Reed Hastings said on Facebook, “Trump’s actions are hurting Netflix employees around the world.”

Google CEO Sundar Pichai told employees to cancel travel outside of the United States and to get in touch with Google’s human resources department if they are not in the United States. A Google spokesperson said, ” We’re concerned about the impact of this order and any proposals that could impose restrictions on Googlers and their families, or that could create barriers to bringing great talent to the U.S.”

Reactions from governments worldwide continued to pour in. On January 28, 2017, Iran announced that all U.S. citizens, other than those with valid visas, would be barred from entering Iran. British Prime Minister Theresa May, who had just visited the United States and came under heavy criticism for not immediately denouncing the ban, said she did not agree with it. Canadian Prime Minister Justin Trudeau tweeted, “To those fleeing persecution, terror & war, Canadians will welcome you, regardless of your faith. Diversity is our strength.” Ahmed Hussen, Canada’s recently appointed Immigration Minister, came to Canada as a Somali refugee and is a dual national.

The Executive Order is at https://www.whitehouse.gov/the-press-office/2017/01/27/executive-order-protecting-nation-foreign-terrorist-entry-united-states. The order from the U.S. District Court for the Eastern District of New York is at http://i2.cdn.turner.com/cnn/2017/images/01/28/darweesh.v.trump_decision.and.order.document-3.pdf. President Trump’s executive order on public safety is at https://www.whitehouse.gov/the-press-office/2017/01/25/presidential-executive-order-enhancing-public-safety-interior-united. His statement of policies related to immigration is at https://www.donaldjtrump.com/policies/immigration/.

For advice on specific situations, contact your local member of the Alliance of Business Immigration Lawyers. For more general information, see the frequently asked questions and answers, below.

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  1. Entry Ban: Frequently Asked Questions

The following is adapted from frequently asked questions (FAQs) published by ABIL member firm Maggio & Kattar in response to President Trump’s executive order, “Protecting the Nation From Terrorist Attacks by Foreign Nations,” banning entry to the United States by individuals traveling from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen. These FAQs reflect the situation as of January 31, 2017. New developments continued to rapidly change implementation of the order.

What are the key points of this Executive Order?

President Trump signed an Executive Order (EO) the afternoon of Friday, January 27, 2017, which, according to its introduction, is intended to “protect Americans.” The EO became effective as of the date of signing. Among the EO’s key provisions are:

  • 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.
  • 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.

What is an Executive Order? Can it be challenged?

Does the EO change the law or regulations?

While the president has the authority to issue such orders if the administration deems the action to be in the public interest, the EO does not change, replace, or repeal existing statutes (laws) or regulations.

Legal challenges have already been made to provisions of the EO. Many believe that wide sweeping bans such as those on refugee admissions and visa issuance effectively discriminate against individuals on a religious basis, as all the countries are predominantly Muslim.

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 blocks the government from sending people out of the country after they have landed at a U.S. airport with valid visas, including green card holders. Several other federal courts have issued similar stays.

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.

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.

U.S. Customs and Border Protection (CBP) officers at border crossings, U.S. airports, and pre-flight inspection at certain foreign airports are not permitted to admit individuals who are nationals of designated countries or allow them to enter the United States, even if they have a facially valid visa.

Who is affected by the 90-day ban?

This ban applies to nationals of the seven (7) designated countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.

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?

It is not entirely clear. The EO, as written, does appear to include those born in one of the designated countries even if they do not currently hold a passport from that country or no longer consider themselves a citizen of that country. Keep in mind that “country of birth” is listed on permanent resident cards and is usually listed on one’s passport and that CBP and DOS consular officers review these documents.

However, on the afternoon of January 31, 2017, DHS Secretary Kelly held a press conference on the travel ban or, as he described it, a “temporary pause” on visa issuance and admission. On the question of the impact of dual nationality, acting CBP Commissioner Kevin McAleenan indicated that the individual would be evaluated based upon the passport presented and not on his or her “dual national” status. Presumably, an individual presenting a passport from a non-designated country would not be impacted by the EO’s restrictions, even if he or she also holds nationality in a designated country.

Statements by U.S. embassies (e.g., in London) and the governments of Canada and Australia are consistent with Secretary Kelly’s indication that the restriction does not apply to dual nationals who present a passport from a non-designated country. For example, the U.S. embassy in London has stated on its website that “dual nationals of the United Kingdom and one of [the designated] countries are exempt from the Executive Order when travelling on a valid United Kingdom passport and U.S. visa.” Anecdotal reports from U.S.-Canada land border entry points also show that CBP is not applying the ban to Canadian dual nationals from the designated countries.

This “clarification,” however, may conflict with a recent DOS cable to embassies and consulates worldwide in which the DOS provides the following guidance on who is considered to be a dual national: those who “possess a current passport from the restricted country, have been denied [Electronic System for Travel Authorization (ESTA)] based on nationality in a designated country (but not on travel to the country without being a national of that country), or who have otherwise identified themselves as nationals of a restricted country including on a previous application or in an interview, including as a dual national.”

Also, as of press time, some airlines reportedly were not allowing people in these situations to board, and not issuing airline tickets. Those traveling on non-covered passports may still be unable to get visas if they are known to be dual nationals of a covered country, and there is some risk that non-Canadian dual nationals with nonimmigrant visas (NIVs) might not be admitted if CBP realizes their NIVs have technically been provisionally revoked.

Therefore, there may be exceptions to the manner in which dual nationals are treated upon entry to the United States dependent upon a number of circumstances. Until there is amended guidance from the DOS, dual nationals should assume the ban could apply to them under the circumstances noted in the DOS cable discussed above.

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

The Executive Order as written did ban the entry of affected lawful permanent residents (LPRs). As discussed below in the question about “exceptions” to the ban, the EO does include a provision that allows the issuance of “visas or other immigration benefits” to affected individuals on a “case-by-case basis, and when in the national interest.” On Sunday, January 29, 2017, DHS Secretary John Kelly issued a statement [https://www.dhs.gov/news/2017/01/29/statement-secretary-john-kelly-entry-lawful-permanent-residents-united-states] that attempts to clarify this provision as relates to lawful permanent residents. In this statement, Secretary Kelly notes, “Absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status will be a dispositive factor in our case-by-case determinations.”

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 seven countries. Travel to one of the seven 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 have been reports of airlines refusing to board individuals who appear to be affected by the EO’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, they will most likely not be able to return. The temporary halt in enforcing portions of the ban, discussed below, could end at any time. We caution affected individuals not to rely on the court’s temporary halt when making a decision to travel abroad.

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

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 currently outside the United States 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. 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 CBP officers will be overwhelmed in the coming days 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?

As of Saturday January 28, 2017, the U.S. District Court for the Eastern District of New York issued an emergency stay of certain provisions of the EO. Thus, the U.S. government is restrained from barring the admission of refugees seeking admission as part of the USRAP, holders of valid immigrant and nonimmigrant visas, and other individuals from the seven designated countries. This stay applies nationwide. Several other federal courts have issued similar stays.

At least one of the stays, issued in the District of Massachusetts, may potentially allow future flights to the United States, since CBP has been instructed by the court in that case to advise airlines with flights to Logan Airport that travelers who would otherwise be allowed into the United States will not be refused admission on account of the EO.

The EO as written permits DOS and DHS to issue visas, or other immigration benefits, to affected individuals on a “case-by-case” basis and when in the “national interest.” It was this authority that DHS has used to allow admission of most LPRs, as discussed above. At this time, it is not clear how such requests will be adjudicated in other contexts or what factors the agencies will consider. Anyone seeking to make such a request 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. There are credible reports that CBP is still 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 such individuals, 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. The EO does not change the existing immigration law, including the right to apply for asylum.

How are the U.S. consulates implementing the ban on visas?

According to credible sources, the DOS issued a cable to all embassies and consular posts to suspend the issuance of nonimmigrant and immigrant visas for nationals of designated countries. The EO has an exception for nationals of the seven designated countries who are applying for A, G, NATO, C-2, and C-3 visas; presumably affected individuals seeking A, G, NATO, C-2, and C-3 visas may still apply for and expect to receive these visas, if otherwise eligible.

Consulates will stop scheduling and conducting interviews of affected individuals. They also will stop issuing (printing) visas for anyone who was already interviewed but who has not yet received the visa. Courier services will be instructed to return the unadjudicated applications to the affected individuals. Consular posts are beginning to post alerts on their websites to advise individuals of the suspension of visa issuance “effective immediately and until further notification.” It is unclear whether DOS will refund visa fees (which are normally valid for one year), although refunds appear unlikely.

The DOS, through this cable, has reiterated that the ban applies to “dual nationals,” which DOS notes includes those who “possess a current passport from the restricted country, having been denied ESTA based on nationality in a designated country (but not on travel to the country without being a national of that country), or who have otherwise identified themselves as nationals of a restricted country including on a previous application or in an interview, including as a dual national.” Please see item above on conflicting reports on the application of the ban to dual nationals.

With regard to immigrant visas for those affected by the ban, the DOS will cancel currently scheduled interviews and will not schedule immigrant visa interviews for March or April.

How will the EO 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, DHS leadership received email instructions over the weekend to suspend the adjudication of immigration applications by affected individuals from any of the seven designated countries. The Associate Director of Field Operations at USCIS apparently informed DHS employees that “effectively [sic] immediately and until additional guidance is received, you may not take final action on any petition or application where the applicant is a citizen of [one of the named countries] …Field offices may interview applicants for adjustment of status and other benefits according to current processing guidance and may process petitions and applications for individuals from these countries up to the point where a decision would be made. At that point, cases shall be placed on hold until further notice and will be shelved …Offices are not permitted [to] make any final decision on affected cases to include approval, denial, withdrawal, or revocation.” This directive indicated that further guidance would be forthcoming on naturalization (citizenship) applications “in the coming days.”

This hold on adjudications presumably includes asylum applications, adjustment of status applications (I-485), and applications for employment authorization documents (EADs, or work permits) (I-765), among others. While the directive appears to focus on applications pending at local USCIS Field Offices given its reference to “interviews,” it would be reasonable to assume that it also prohibits adjudications at the USCIS regional service centers where the agency normally reviews and adjudicates applications for other benefits, including adjustment of status applications, applications or petitions to change or extend nonimmigrant status, applications for employment authorization, advance parole travel documents, and applications for temporary protected status (TPS).

The January 31, 2017 guidance from CBP, however, indicates that the USCIS will continue to adjudicate N-400, as it did before the EO.

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

The EO only affects those who are applying for visas (nonimmigrant and immigrant), seeking entry, or actively applying for an immigration benefit (e.g., change or extension of status, adjustment to permanent resident, naturalization, and other benefits noted above).

Might the ban be longer than 90 days?

The EO 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 (which would be April 27, 2017). Instead, DHS is required to report whether countries have provided information “needed … for the adjudication of any … benefit under the INA … to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat.” If the country does not report or presumably if any such reporting is not found to be adequate, the country then would have 60 days to comply in providing such information or the travel ban would become indefinite.

Will the ban be extended to include other countries?

The EO’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 “comply” and 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 are affected.

For most refugees, the suspension is at least 120 days. For Syrian refugees, the ban on admission is indeterminate. The EO states that refugee processing and admission of Syrian refugees shall cease until such time as the President has determined that sufficient changes have been made to the program to ensure its alignment with the national interest. There is no further clarification of what may be deemed “sufficient” or “national interest.” This provision effectively eliminates the processing of refugee applications by and admission of Syrian refugees.

How long is the suspension of USRAP?

The USRAP is 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.

Are certain refugees or countries a priority?

The EO states that once the USRAP starts allowing refugees to enter, DOS is to prioritize refugees with religious-based claims, if the refugee’s religion is a minority religion in the individual’s country of nationality. The EO does not address the issue of subsects or minority groups within a country’s predominant religion.

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. If the suspension continues for more than 120 days, it is questionable whether the United States will admit any refugees during the 2017 fiscal year.

Are there any exceptions to this ban on refugee admissions?

Yes. As mentioned above, as of Saturday, January 28, 2017, the U.S. District Court for the Eastern District of New York issued an emergency stay of the EO. Thus, the U.S. government is restrained from barring the admission of refugees seeking admission as part of the USRAP, holders of valid immigrant and nonimmigrant visas, and other individuals from the seven designated countries. This stay applies nationwide. Several other federal courts have issued similar stays.

The EO as written permits DOS and DHS to admit individuals as refugees on a case-by-case basis when in the national interest.

Even during the 120-day suspension period, the DOS and DHS may continue to process and admit refugees with religious-based claims, if the religion is a minority religion in the country of nationality.

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

The EO 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.

The Executive Order is at https://www.whitehouse.gov/the-press-office/2017/01/27/executive-order-protecting-nation-foreign-terrorist-entry-united-states. There may be further updates to these FAQs as the situation develops. See http://www.maggio-kattar.com/blog/white-house-executive-orders-us-travel-ban-faqs.

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  1. Reminder: USCIS Will Accept H-1B Petitions for FY 2018 Beginning April 1, 2017

On April 1, 2017, U.S. Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions subject to the fiscal year (FY) 2018 cap. U.S. businesses use the H-1B program to employ foreign workers in occupations that require highly specialized knowledge in fields such as science, engineering, and computer programming.

The congressionally mandated cap on H-1B visas for FY 2018 is 65,000. The first 20,000 H-1B petitions filed for individuals with a U.S. master’s degree or higher are exempt from the 65,000 cap.

The Alliance of Business Immigration Lawyers (ABIL) recommends filing during the first five business days in April. Contact your ABIL member for help with H-1B applications.

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  1. USCIS Issues Final Rule on International Entrepreneurs

U.S. Citizenship and Immigration Services (USCIS) issued a final rule on January 17, 2017, implementing the Secretary of Homeland Security’s discretionary parole authority “to increase and enhance entrepreneurship, innovation, and job creation in the United States.” The rule adds 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. The rule states that 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 to facilitate the applicant’s ability to oversee and grow his or her start-up entity in the United States. Extensions are possible for an additional 30 months.

An individual seeking to operate and grow a start-up entity in the United States generally would need to demonstrate the following to be considered for a discretionary grant of parole under the final rule: (1) the applicant has formed a new start-up entity; (2) the applicant is an entrepreneur; and (3) the applicant has received significant U.S. capital investment or government funding, which may include investments from established U.S. investors, government grants, or meeting alternative criteria. Under the alternative criteria requirement, an applicant who partially meets the above criteria related to capital investment or government funding may be considered for parole if he or she provides additional “reliable and compelling evidence” that he or she would “provide a significant public benefit” to the United States. “Such evidence must serve as a compelling validation of the entity’s substantial potential for rapid growth and job creation,” the final rule states, noting that USCIS adjudicators will consider the totality of the evidence.

The final rule, which takes effect July 17, 2017, is at https://www.federalregister.gov/documents/2017/01/17/2017-00481/international-entrepreneur-rule.

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  1. USCIS Extends TPS for Somalia

On January 17, 2017, U.S. Citizenship and Immigration Services (USCIS) extended temporary protected status (TPS) for eligible nationals of Somalia for an additional 18 months, effective March 18, 2017, through September 17, 2018. Current Somalian TPS beneficiaries seeking to extend their TPS must re-register during the 60-day re-registration period that began January 17, 2017, and runs through March 20, 2017. USCIS said it encouraged beneficiaries to re-register as soon as possible once the 60-day re-registration period began.

The 18-month extension also allows TPS re-registrants to apply for a new employment authorization document (EAD). Eligible TPS Somalia beneficiaries who re-register during the 60-day period and request a new EAD will receive one with an expiration date of September 17, 2018. USCIS said it recognizes that some re-registrants may not receive their new EADs until after their current work permits expire. Therefore, USCIS automatically extended the validity of current TPS Somalia EADs with an expiration date of March 17, 2017, for an additional six months. These existing EADs are now valid through September 17, 2017.

The announcement is at https://www.uscis.gov/news/temporary-protected-status-extended-somalia-0. It is unclear what effect, if any, the new Trump administration will have on this extension or other TPS issues.

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  1. USCIS Issues Guidance on Interpreters Brought to Domestic Field Office Interviews

U.S. Citizenship and Immigration Services (USCIS) issued new guidance on January 18, 2017, on the role and use of interpreters in domestic field office interviews, to be implemented May 1, 2017. USCIS said the policy memorandum is intended to help ensure that those who bring interpreters to certain interviews have competent language assistance.

USCIS said the guidance applies to interviews 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 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.

USCIS said it will introduce Form G-1256, Declaration for Interpreted USCIS Interview. Both the interviewee and interpreter must sign the new form at the beginning of the interview in the presence of the USCIS officer.

The memo states that the standards include being 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, except for good cause for those ages 14-17; witnesses, except for good cause; and attorneys and accredited representatives of the interviewee.

The memo is at https://www.uscis.gov/news/alerts/role-and-use-interpreters-domestic-field-office-interviews.

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  1. ABIL Global: Canada

This article discusses obtaining permanent residence in Canada through the Express Entry system.

Introduced on January 1, 2015, Express Entry is an online application system used by Immigration, Refugees and Citizenship Canada (IRCC) to manage, assess, and approve Canadian permanent residence applications under the Federal Skilled Worker program, the Federal Skilled Trades program, and the Canadian Experience Class program. In addition to these economic immigration programs, Express Entry is currently being used by certain Canadian provinces as a gateway to apply for their Provincial Nominee programs. Express Entry applications are intended for foreign nationals wishing to settle in a Canadian province other than Québec (because Québec operates its own distinct permanent immigration program). While the core requirements of each program remain unchanged, Express Entry brings to the Canadian immigration world a new system designed to improve processing times and to give immigration officers the means to select from a large pool of candidates the top applicants for Canadian permanent residence.

The Express Entry system operates under a two-step process. First, a candidate wishing to apply for Canadian permanent residence must submit his or her application “profile” in the Express Entry pool of candidates, where the application is evaluated against other candidates in the pool. The Express Entry system assesses a candidate’s desirability by ranking all applications received according to Comprehensive Ranking System (CRS) points, and provides each candidate with an overall CRS points score. Under the Express Entry system, CRS points are awarded to candidates based on the value of their education, their English and French language skills, their Canadian work experience, and their Canadian offer of employment, if applicable. Moreover, points are given to candidates based on a broader skills transferability category, which awards points based on a combination of English and French language proficiency, education credentials, and Canadian and foreign work experience.

Following the assessment of each candidate’s qualifications in the Express Entry system, candidates with the highest number of CRS points receive an “Invitation to Apply” for Canadian permanent residence. This “Invitation to Apply” is a mandatory step in the process, without which it is impossible to apply for Canadian permanent residence under the economic immigration programs listed above. Once the “Invitation to Apply” is received, a candidate has 90 days to submit a Canadian permanent residence application along with all supporting documents.

Pursuant to the “Ministerial Instructions Amending the Ministerial Instructions Respecting the Express Entry System,” effective November 19, 2016, significant changes were introduced to the way points are awarded in the Express Entry system. Until recently, candidates who held a Labour Market Impact Assessment (LMIA)—a favorable opinion issued by Service Canada confirming a temporary job offer in Canada—were awarded 600 CRS points, virtually guaranteeing an “Invitation to Apply.” With the newly announced changes of November 19, 2016, candidates with a valid LMIA are no longer awarded these 600 CRS points and must now be satisfied with only 50 CRS points. While this is a major disadvantage to candidates who before November 19, 2016, depended on their LMIAs to secure an “Invitation to Apply,” other skilled candidates who hold valid work permits under LMIA-exempt categories (such as Intra-Company Transferees or NAFTA Professionals) will now be awarded 50 CRS points or 200 CRS points, depending on their occupation (200 CRS points are awarded for an offer of employment in an occupation contained in Major Group 00 (senior management occupations) of the National Occupation Classification (NOC)). It is expected that these candidates will become more competitive in the Express Entry pool of candidates and will decrease the overall CRS score a candidate must reach to receive the sought-after “Invitation to Apply.” As an example, with the January 4, 2017 “draw,” the candidate with the lowest score to receive an “Invitation to Apply” had a total of 468 CRS points. The November 2016 changes also provide new points for Canadian study credentials.

Once a candidate receives the “Invitation to Apply” for Canadian permanent residence and submits a complete application to IRCC, he or she may become eligible to file an application for a Bridging Open Work Permit (BOWP). This work permit, valid for 12 months, allows a candidate to renew a current Work Permit (if expiring within 4 months) while the Express Entry Application for permanent residence is being processed.

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8.            Firm In The News…

Cyrus Mehta was a Panelist, Breaking the Silos: How Employment Law, Privacy, and The Affordable Care Act (ACA) Impact Immigration Decision Making, 2017 AILA Midwinter Conference, Phillipsburg, St. Maarten, January 20, 2017.

Cyrus Mehta has co-authored with Alan Goldfarb Up Against A Wall: Post-Election Ethical Challenges for Immigration Lawyers under aegis of AILA Ethics Committee, published on AILA InfoNet at AILA Doc. No. 17011200 (posted January 11, 2017). Back to Top

FAQ on Travel Ban

White House Executive Orders: U.S. Travel Ban FAQs

Monday, January 30, 2017 – 9:15am

Note: the information below is based on what we know as of the morning of January 30, 2017.  New developments continue to rapidly change the implementation of President Trump’s Executive Order: “Protecting The Nation From Terrorist Attacks By Foreign Nation,” which includes a ban on entry to the U.S. for citizens of certain Muslim-majority countries.  For individual advice or to know how this Executive Order may impact you, we advise that you consult with our firm.

What Is An Executive Order? Can It Be Challenged?

Does the EO change the law or regulations?

While the president has the authority to issue such orders if the administration deems the action to be in the public interest, the EO does not change, replace or repeal existing statutes (laws) or regulations.

Legal challenges have already been made to provisions of the EO. Many believe that wide sweeping bans such as those on refugee admissions and visa issuance effectively discriminate against individuals on a religious basis, as all the countries are predominantly Muslim.

On Saturday, January 28, US federal judge Ann Donnelly of the U.S. District Court for the Eastern District of New York in Brooklyn issued an emergency “stay” that temporarily blocks the government from sending people out of the country after they have landed at a U.S. airport with valid visas including green card holders. Several other federal courts have issued similar stays.

What Are The Key Points of This Executive Order?

President Trump signed an Executive Order (EO) the afternoon of Friday, January 27, 2017 which, according to its introduction, is intended to “protect Americans.” The EO became effective as of the date of signing. Among the EO’s key provisions are the following:

  • A 90 day ban on the issuance of US 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.
  • An immediate review by the US 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 US Refugee Admissions Program (USRAP) for 120 days.
  • The implementation of “uniform screening standards for all immigration programs” including reinstituting “in person” interviews.
  • Requiring all individuals who need visas to apply for them in-person at US consulates, rather than allowing “mail-in” or drop-box applications.

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.

The US 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, H-1Bs, etc. and immigrant visas (green cards)  for those seeking to become US permanent residents.

US Customs and Border Protection (CBP) officers at border crossings, US airports and pre-flight inspection at certain foreign airports are not permitted to admit individuals who are nationals of designated countries or allow them to enter the United States, even if they have a facially valid visa.

Who is affected by the 90-day ban?

This ban applies to nationals of the seven (7) designated countries – Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.

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 90-day travel ban include “dual” nationals? What if the individual was born in one of the 7 countries but is now a citizen of another country (e.g., Canada) and only holds that passport?

Until more information becomes available, we must assume that the ban includes dual nationals in at least some instances. We should assume that it includes those born in one of the designated countries even if they do not currently hold a passport from that country or no longer consider themselves a citizen of that country. Keep in mind that “country of birth” is listed on permanent resident cards and is usually listed on one’s passport and that CBP and DOS consular officers review these documents. However, certain countries appear to have secured exemptions from the ban for their citizens. Canadian authorities have indicated that the ban will not apply to Canadian citizens traveling on a Canadian passport even if they are dual citizens of one of the 7 countries. It appears there is a similar arrangement in place for British citizens, although some reports suggest it may apply only if those British citizens are coming to the US from the UK rather than directly from one of the 7 countries; other reports suggest that the exemption applies to all British citizens, though those coming directly to the US from one of the 7 countries may face extra scrutiny. Going forward, it is possible that additional countries with close relations with the United States may secure similar treatment for their dual nationals, but for the moment caution is advised for dual citizens of one of the 7 countries and any country other than Canada or Britain.

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

Initially the ban was being applied to lawful permanent residents (LPRs), but the Secretary of Homeland Security has now indicated that “absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare,” LPR status will be “a dispositive factor” in DHS’s determination whether to waive the ban. That is, except under unusual circumstances, the ban will not be applied to LPRs, although LPRs may still face additional questioning upon arrival.

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 7 countries. Travel to one of the 7 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.  Such individuals may be placed in secondary inspection on arrival at a US 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 US airport?

There have been reports of airlines refusing to board individuals who appear to be affected by the EO’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, they will most likely not be able to return. The temporary halt in enforcing portions of the ban, discussed below, could end at any time.  We caution affected individuals not to rely on the court’s temporary halt when making a decision to travel abroad.

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

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 US airport. Anyone affected by the ban who is currently outside the United States should consult with an immigration attorney before attempting to return in order to understand the current state of affairs, the risks involved and to develop a strategy based upon his or her individual circumstances.

What will happen to travelers from the 7 countries who are refused entry to the U.S. 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. There is no right to an attorney for individuals who arrive at US 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 CBP officers will be overwhelmed in the coming days 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?

As of Saturday January 28, 2017, the U.S. District Court for the Eastern District of New York (LINK) issued an emergency stay of certain provisions of the EO. Thus, the US government is restrained from barring the admission of refugees seeking admission as part of the USRAP, holders of valid immigrant and nonimmigrant visas and other individuals from the 7 designated countries. This stay applies nationwide. Several other federal courts have issued similar stays. At least one of the stays, issued in the District of Massachusetts, may potentially allow future flights to the U.S., since CBP has been instructed by the court in that case to advise airlines with flights to Logan Airport that travelers who would otherwise be allowed into the United States will not be refused admission on account of the EO.

The EO as written permits DOS and DHS to issue visas, entry or other immigration benefits to affected individuals on a “case-by-case” basis and when in the “national interest.” It was this authority that DHS has used to allow admission of most LPRs, as discussed above. At this time, it is not clear how such waiver requests will be adjudicated in other contexts, or what factors the agencies will consider. Anyone seeking to make such a request 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. CBP may detain or threaten detention of individuals in such cases.  It is also possible that CBP may agree to defer the inspection of such individuals, 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.

How are the US consulates implementing the ban on visas?

There are reports that US consulates are cancelling the nonimmigrant and immigrant visa interviews of anyone subject to the ban.

The American Immigration Lawyers Association (AILA) has received reports that as of the evening of January 27, 2017, all U.S. embassies and consular posts received instructions to immediately suspend the issuance of nonimmigrant and immigrant visas for nationals of designated countries. The EO has an exception for nationals of the 7 designated countries who are applying for A, G, NATO, C-2 and C-3 visas; presumably affected individuals seeking A, G, NATO, C-2 and C-3 visas may still apply for and expect to receive these visas, if otherwise eligible. In addition, contractors working with the US embassies and consular posts have been instructed to cancel visa interviews for affected individuals.

How will the EO affect applications pending before the US Citizenship and Immigration Services (USCIS)?

While we do not yet know how USCIS will implement this directive, we assume that the agency may suspend the review and adjudication of applications of affected individuals. This may include adjustment of status applications, applications or petitions to change or extend nonimmigrant status, applications for employment authorization and advance parole travel documents; naturalization applications; and applications for Temporary Protected Status (TPS).

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

The EO only impacts those who are applying for visas (nonimmigrant and immigrant), seeking entry, or actively applying for an immigration benefit (e.g., change or extension of status, adjustment to permanent resident, naturalization, and other benefits noted above).

Could the travel ban be longer than 90 days?

The EO 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 (which would be April 27, 2017). Instead, DHS is required to report whether countries have provided information “needed … for the adjudication of any … benefit under the INA … to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat.” If the country does not report or presumably if any such reporting is not found to be adequate, the country then would have 60 days to comply in providing such information or the travel ban would become indefinite.

Will the travel ban be extended to include other countries?

The EO’s call for a DHS report based, in part, on information provided by other countries that the US government says it needs to property review and vet individuals, appears to allow for DHS to recommend including additional countries in the ban, until they “comply” and provide the US 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 US government.

Suspension Of The US Refugee Admissions Program (USRAP)

Who is affected by the suspension of the USRAP?

All refugees being processed abroad and seeking admission to the United States are impacted.

For most refugees, the suspension is at least 120 days. For Syrian refugees, the ban on admission is indeterminate. The EO states refugee processing and admission of Syrian refugees shall cease until such time as the President has determined that sufficient changes have been made to the program to ensure its alignment with the national interest. There is no further clarification of what may be deemed “sufficient” or “national interest.” This provision effectively eliminates the processing of refugees applications by and admission of Syrian refugees.

How long is the suspension of USRAP?

The USRAP is 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 only resume refugee admissions for nationals of countries that are found to have sufficient safeguards to ensure security and welfare of the United States.

Are certain refugees or countries a priority?

The EO states that once the USRAP starts allowing refugees to enter, DOS is to prioritize refugees with religious-based claims, if the refugee’s religion is a minority religion in the individual’s country of nationality. The EO does not address the issue of sub-sects or minority groups within a country’s predominant religion.

How many refugees will be let in to the United States?

The EO states that DOS and DHS may only 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. If the suspension continues for more than 120 days, it is questionable whether the US will admit any refugees during the 2017 fiscal year.

Are there any exceptions to this ban on refugee admissions?

Yes. As of Saturday January 28, 2017, the U.S. District Court for the Eastern District of New York issued an emergency stay of the EO. Thus, the US government is restrained from barring the admission of refugees seeking admission as part of the USRAP, holders of valid immigrant and nonimmigrant visas and other individuals from the 7 designated countries. This stay applies nationwide. Several other federal courts have issued similar stays.

The EO as written permits DOS and DHS to admit individuals as refugees on a case-by-case basis when in the national interest.

Even during the 120-day suspension period, the DOS and DHS may continue to process and admit refugees with religious-based claims, if the religion is a minority religion in the country of nationality.

Elimination of Mailed-In Visa Applications Or The “Drop-Box” Application

The EO eliminates the ability of some individuals who need visas to apply for their visas at US 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 US 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 US visa will be required to make an appointment at a US 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. US employers who await the arrival or return of employees may also be negatively impacted given these anticipated slowdowns in the process to obtain US 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.