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Immigration Advisory and FAQs


For the latest updates, please visit our recent news section.

The general information provided below is not intended to serve as a source of legal advice for any purpose. Please contact your designated Gibney representative or immigration counsel for specific legal advice.

Advisory

Updates on Trump Executive Actions on Immigration
June 29, 2017

The Trump administration has issued a number of Executive Orders impacting immigration law, policy and procedures. Executive Orders are published on the White House website.

US Supreme Court Reinstates Portions of Trump’s Executive Order on Immigration
On June 26, 2017, the US Supreme Court granted the government’s request to review the merits of the federal court challenges to President Trump’s Executive Order on immigration signed on March 6, 2017 (“the Order”).  The Court will hear arguments on the case in October 2017, with a decision likely later in the fall.  The Court permitted certain portions of the Order to take effect, staying in part the temporary injunctions upheld by the Fourth and Ninth Circuit Courts of Appeal.

Pursuant to the Court’s ruling, on June 29, 2017, the Department of State issued guidelines for the implementation of a 90-day suspension of entry to the U.S. for certain foreign nationals who are citizens or nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen, who lack a “bona fide relationship with a person or entity in the U.S.” The 90-day suspension of entry will be implemented effective 8:00 pm ET on June 29, 2017.

Foreign nationals from the six affected countries with plans to travel to the US should consult with immigration counsel before applying for a visa, entering the US or departing from the US. Gibney is available to work with clients to document the above-described criteria, and prepare for increased scrutiny at US Consulates abroad. Gibney will continue to monitor how the new guidelines are implemented at the border and at consulates.

The Department of State provided guidance regarding implementation of the order on June 29, 2017.  See also Gibney’s Immigration Alert.

See FAQs below for additional information regarding travel, guidance on Executive Orders and who is exempt from travel restrictions.


FAQs

(Last updated August 30, 2017):

For the most recent updates, visit our news page.

Topics:

General Information on Immigration Policy Changes and Travel
Executive Order Restricting Entry of Nationals from Designated Countries
Other Executive Orders Impacting Immigration and Travel

General Information on Immigration Policy Changes and Travel

Q1: Where can I find the latest government notices?
Please visit Gibney’s Useful Links for general information available on U.S. federal government websites and other sources. The information changes frequently. Some government websites may not be updated and/or may conflict with rules or policies being applied in practice at other agencies, consulates and ports of entry to the U.S. Please contact immigration counsel for specific legal advice on your case.

Q2:  What documents should foreign nationals carry while in the United States and traveling domestically?
All travelers, including U.S. citizens, should carry a government issued identification card (e.g.  a driver’s license) which is typically accepted on domestic flights as proof of identification.  Check with your carrier for a list of acceptable documents.  If requested by officers, all non-citizens should be prepared to present evidence of immigration status in the U.S.  Lawful permanent residents are required to carry their green card, and temporary visitors should be prepared to present a passport, current I-94, and/or other evidence of status.  Note:  Many foreign nationals with a valid unexpired I-94 may not require a valid visa stamp for domestic travel within the United States, but do require a valid visa stamp if entering the U.S. from abroad.  Different and/or additional documents may be required for international travel.    Please contact immigration counsel for specific legal advice and/or information regarding documentation required for international travel and re-entry to the U.S. from abroad.

Q3: What type of “extreme vetting” is being conducted by immigration officials?
The Trump Administration is implementing new enhanced screening and vetting protocols, including the requiring new forms and/or additional data from applicants and expanding in-person interview requirements, as part of the application process for a number of immigration benefits, including US visas and green cards.

According to the Department of State, consular officials will request additional information when they determine that such information is required to confirm identity or conduct more rigorous national security vetting. The Department confirmed that the tighter vetting would apply to visa applicants “who have been determined to warrant additional scrutiny in connection with terrorism or other national security-related visa ineligibilities.”

Under the new procedures, consular officials will have significant discretion in deciding who will be required to provide additional details. For selected applicants, consular officers can request all prior passport numbers; five years’ worth of social media handles, email addresses and phone numbers; and 15 years of biographical information including addresses, employment and travel history. The new supplemental visa application form has been approved for use for an initial period of six months.  For additional information, see the notice published in May 2017.

In addition, US Citizenship and Immigration Services has announced plans to phase-in mandatory interview requirements for a many applications, including requiring interviews for all employment-based I-485 applications for adjustment to permanent resident status starting October 1, 2017. Increased information gathering, data sharing among agencies, and more in-person interviews are likely to result in greater scrutiny and longer processing times for applications.


Executive Order Restricting Entry of Nationals from Designated Countries

Q1: What is the current status of the Executive Order signed on March 6, 2017 ? 

Federal courts initially blocked implementation of President Trump’s Executive Order on immigration signed on March 6, 2017 (the “Order”), and the US Supreme Court partially reinstated the Order on June 26, 2017 pending a full hearing on the merits in October 2017.  The US Supreme Court allowed for the suspension of entry by nationals – by birth or citizenship – from six designated countries if the individuals lack any “bona fide relationship with any person or entity in the United States.”

Pursuant to the Court’s ruling, on June 29, 2017, the Department of State issued guidelines for the implementation of a 90-day suspension of entry to the US. The 90-day suspension of entry will go into effect on 8:00 pm ET on June 29, 2017.

Q2: What are the “designated countries” subject to restrictions on entry? 

Designated countries subject to the travel restrictions under the revised Executive Order include Iran, Libya, Somalia, Sudan, Syria and Yemen. Note: The administration is evaluating additional countries. These may be added to list of designated countries or subject to restrictions on entry to the US without notice.

In the revised order issued March 6, 2017, Iraq was removed from the original list of designated countries subject to the ban on entry. However, nationals of Iraq will be subject to additional inquiries and security clearances which may restrict or significantly delay travel to the US.

Q3: What is the impact on foreign nationals from the designated countries- who is not subject to the travel ban? 

Nationals of one of the designated countries – by birth or citizenship – will be barred from entry to the US for at least 90 days, unless they qualify under an exemption or an officer approves a waiver. Those who qualify for exemptions or waivers may still be subject to additional scrutiny at consulates or ports of entry.

Exemptions
Nationals of the designated countries in following categories would not be subject to the restrictions:

  • US citizens and lawful permanent residents (“green card” holders);
  • Dual nationals using the passport from a non-designated country;
  • Foreign nationals who were in the US as of June 26, 2017;
  • Foreign nationals already in possession of a valid visa or other valid entry documents as of June 29, 2017;
  • Diplomats;
  • Persons already granted asylum, refugees already admitted to the United States and individual granted withholding of removal, advance parole or protection under Convention Against Torture; and
  • Foreign nationals with a “bona fide relationship” with a person or entity in the US (see below for details).

The Department of State’s guidelines also indicate that applicants (and their eligible derivatives) who have established eligibility for a nonimmigrant visa in a classification other than a B, C-1, D, I, or K visa, are exempt from the travel ban. Applicants (and their eligible derivatives) who have established eligibility for immigrant visas in the immediate relative, family-based, and certain employment-based classifications are also exempt from the ban.

Bona Fide Relationship with a US Entity:
The guidelines provide that any relationship with a US entity must be “formal, documented, and formed in the ordinary course,” rather than for the purpose of evading the suspension of entry. Examples of such relationships may include, but are not limited to:

  • Students who have been admitted to US educational institutions;
  • Workers who have accepted an offer of employment from a US company; and
  • Lecturers invited to address an audience in the US

Bona Fide Relationship with a Person in the US:
The guidelines provide that to fall within this exemption, there must be a “close familial relationship” between the visa applicant and a person in the US. A “close familial relationship” was initially defined by the Administration to include: parents, parents-in-law, spouses, fiancé/es, children, adult sons and daughters, son-in-law, daughter-in-law, and siblings (including half-siblings and step-siblings). On July 19, 2017, the US Supreme Court agreed with the US District Court in Hawaii that grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts and uncles, ‎nephews and nieces, and cousins also fall within the definition of a “close familial relationship.”

Those that do not meet the criteria above for either a bona fide relationship with an entity or person in the US may still be granted a waiver on a case by case basis. Foreign nationals from the six affected countries with plans to travel to the US should consult with immigration counsel immediately. For more information, visit the Bureau of Consular Affairs site.

Waivers
The revised Executive Order and DOS guidance provides for discretionary waivers to be evaluated on a case-by-case basis. Officers at the port of entry and consular officers may issue visas or allow entry of a national subject to the ban if the foreign national has demonstrated to the officer’s satisfaction that denying entry during the suspension period would cause undue hardship, entry would not pose a threat to national security and would be in the national interest. Section 3(c) of the order provides examples of circumstances where a waiver may be appropriate.

Due to uncertainties surrounding implementation of this new Executive Order, foreign nationals who may be impacted should contact immigration counsel prior to departing the US or making plans to enter the US or apply for a visa.

There may be risks or delays associated with international travel if you are from or have traveled to one of the designated countries or any other country reported to be of potential concern. Please contact your immigration counsel or Gibney representative for specific legal advice.

Q4: What does the order mean for US citizens originally from one of the designated countries? 

US citizens should not be subject to the ban. US citizens should be admitted, but may be subject to additional scrutiny and questioning when entering the US.

Q5: What is the impact on nationals of one of the designated countries who are lawful permanent residents (with a valid green card) or lawful temporary residents with a valid visa? 

U.S. permanent residents (i.e. green card holders) and those with valid visas already issued by a U.S. consulate should be admitted to the U.S. but may be subject to additional scrutiny and questioning.

Previous reports suggested that delays and detention at U.S. ports of entry may last several hours and travelers should be prepared to have personal effects (luggage, cell phone, laptop, social media accounts, etc.) reviewed by U.S. Customs and Border Protection (CBP) and/or Immigration and Customs Enforcement (ICE) officials. You may be separated from your family members and you may not have access to legal counsel. Nationals of other predominantly Muslim countries may also be subject to detention and additional scrutiny on return to the U.S., even without an Executive Order pertaining to one of these countries. Permanent residents should avoid signing any waivers of their rights without consultation with immigration counsel.

Non-immigrants with temporary status in the U.S. are advised to consult with immigration counsel prior to departing from the U.S. or applying for renewal of an expired visa at a consulate abroad.

Q6: What is the impact on non-citizens who are NOT nationals of a designated country but who have traveled to one of the designated countries? 

The Executive Order does not address this specific point. However, foreign nationals who have traveled to one of the designated countries may be detained on a case-by-case basis and questioned by CBP about travel upon re-entry to the U.S. Detention may last several hours and travelers should be prepared to have your personal effects (luggage, cell phone, laptop, social media accounts, etc.) reviewed by CBP and/or ICE officials. Travelers may be separated from your family members and you may not have access to legal counsel.

In addition, those who have traveled to or been present in Iran, Iraq, Libya, Somalia, Sudan, Syria, or Yemen on or after March 1, 2011 (with limited exceptions) are no longer eligible for travel under the Visa Waiver program and must apply for a visa at a consulate abroad. Please visit the Department of State website for additional information on Visa Waiver travel.

When submitting a visa application form (i.e. Form DS-160), travelers must disclose any international travel and travel to any of the listed countries may trigger additional questions and delay visa issuance.

If you have any concerns, please check with your designated Gibney representative.

Q7: What is the impact on international travel or immigration processing generally? 

All travelers should be prepared in case of delays at ports of entry into the US. In addition, the Executive Order eliminated procedures to waive interviews for applicants renewing their visas at the US consulates abroad. As a result, consular workloads would be expected to increase, resulting in delays in visa processing and visa issuance. Additional security measures may also be implemented, increasing visa processing times. Finally, the federal government is currently subject to a hiring freeze, and additional resources are not likely to be added to meet the increased workloads. Processing times for all applications are expected to increase.


Other Executive Orders

Q1: What is the impact of the Executive Order: Buy American, Hire American issued April 18, 2017 on the H-1B visa category?

The Executive Order does not change the current H-1B program, which is governed by federal law and regulations, nor does it impact the ongoing employment of H-1B workers pursuant to existing law and regulation. Rather, it calls for the strict enforcement of all current laws and directs the various federal agencies to propose program reforms.

Potential agency recommendations could include restricting the qualifying criteria for the H-1B visa, so that only top earners with a specific skill set may be considered.  However, such changes are speculative and likely to require statutory or regulatory change, through either legislative action, or the administrative agency rule-making process. For more information, please see Gibney Alert dated 4/19/2017.

Q2: What are some key provisions of The Executive Order: Enhancing Public Safety in the Interior of the United States, issued January 25, 2017?

Key provisions include:

  • “Enforcement Priorities” include the removal of those who have been charged with or convicted of any crime or who “in the judgment of an immigration officer, otherwise pose a risk to public safety or national security”
  •  Sanctuary Cities – stated policy to “ensure that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds, except as mandated by law” Several cities, including San Francisco, have challenged the implementation of the Trump Administration policy regarding sanctuary cities in the federal courts.

Note: Last year, Dept. of State began enforcing new policy on visa revocations for those with DUI charges; for more information, see our alert.

Foreign nationals with prior security or criminal issues should consult with immigration counsel before traveling or applying for immigration benefits. This includes but is not limited to foreign nationals who have been arrested, charged or convicted of any crime (even if case dismissed), who have had prior visa denials or security clearance/administrative processing, or who have been previously detained at the port of entry.

Actions being taken by federal agencies to implement these orders are uncertain, subject to change and challenge in the courts.

Q3: What are some key provisions of The Executive Order: Border Security and Immigration Enforcement Improvements?

  • Directive to immediately plan and construct a physical wall along the southern border
  • Expand authority and facilities for detention of those who violate immigration laws

All foreign nationals traveling to the U.S. may be subject to increased scrutiny and delays at consulates and ports of entry as a result of the executive order. The recent changes have significantly impacted immigration agency adjudications and there have been reports of inconsistent application of laws and policy by government officials and agencies.

Please contact your designated Gibney representative or immigration counsel for specific legal advice.

For additional information, please visit our Useful Links here.

If you have any queries not covered by the above FAQs, please contact your designated Gibney representative for further information. We will be continuously updating these FAQs as more information becomes available.

This website contains general information about Gibney, Anthony & Flaherty, LLP and is not intended to serve as a source of legal advice for any purpose. Neither receipt of information presented on this site nor any email or other electronic communication sent to Gibney, Anthony & Flaherty, LLP or its lawyers through this site will create an attorney-client relationship, and no such email or communication will be treated as confidential. No user of this site should act or refrain from acting on the basis of information on this site without seeking legal advice from counsel in the relevant jurisdiction. Gibney, Anthony & Flaherty, LLP expressly disclaims liability with respect to actions taken or not taken based on the contents of this site. Prior results do not guarantee a similar outcome.

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White House http://www.whitehouse.gov

U.S. Department of Homeland Security (DHS) www.dhs.gov

U.S. Citizenship and Immigration Services (USCIS) www.uscis.gov

U.S. Customs and Border Protection (CBP) www.cbp.gov

U.S. Immigration and Customs Enforcement (ICE) www.ice.gov

U.S. Department of State (DOS) www.travel.state.gov

U.S. Department of Labor (DOL) www.dol.gov

U.S. Social Security Administration (SSA) www.ssa.gov

Internal Revenue Service (IRS) www.irs.gov

Non-Governmental Organizations with news and information regarding immigrant rights:

American Immigration Council  www.americanimmigrationcouncil.org

American Civil Liberties Union www.aclu.org

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