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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
October 18, 2017

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

Trump Administration’s Latest Travel Ban Blocked

Federal district courts in Hawaii and Maryland issued orders blocking the Trump administration from implementing travel restrictions for nationals of Chad, Iran, Libya, Syria, Yemen and Somalia, which were set to take effect on October 18, 2017.  The restrictions for North Korea and Venezuela were not impacted.  The Trump administration announced plans to appeal the district court ruling.

The White House and Department of State published the following information online:

Department of State Summary by country — Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen and Somalia

Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats 

Department of Homeland Security FAQs

Please consult with immigration counsel for legal advice. Individuals concerned about the impact of travel restrictions should consult with an attorney before making plans to travel to or depart from the United States.

See FAQs below for additional information.


FAQs

(Last updated October 18, 2017):

For information on the Proclamation issued by the Trump administration on September 24, 2017, please see above.

For the most recent updates, visit our news page.

Topics:

General Information on Immigration Policy Changes and Travel
Presidential Actions 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.

Q4.  What is the government’s policy on searches at airports and other ports of entry to the US?

Those seeking admission to the US are subject to search at ports of entry.  For more information regarding the government’s authority and policies regarding searches, please visit the US Customs and Border Protection website.


Presidential Actions Restricting Entry of Nationals from Designated Countries

Updated October 18, 2017

Q1: What is the current status of the Executive Order restricting entry by certain foreign nationals? 

On September 24, 2017, the White House published a Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats. 

On October 17, 2017, federal district courts in Hawaii and Maryland issued orders blocking the Trump administration from implementing the Proclamation’s travel restrictions for nationals of Chad, Iran, Libya, Syria, Yemen and Somalia, which were set to take effect on October 18, 2017.  The restrictions for North Korea and Venezuela were not impacted.  The Trump administration announced plans to appeal the district court ruling.

For additional information, please see Gibney’s recent news section.

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

Designated countries subject to the additional travel restrictions under the new Proclamation include Chad, Iran, Libya, North Korea, Somalia, Syria and Yemen.  There are also limited travel restrictions for certain nationals of Venezuela with ties to the government.  The new Proclamation is more targeted than the March 6, 2017 Executive Order, different countries have varying levels of restrictions for temporary visitors (nonimmigrants) in designated visa categories and those seeking to immigrate permanently to the US. (immigrants).  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.

Iraq and Sudan are no longer on the list of designated countries subject to the ban on entry. However, nationals of Iraq and Sudan will likely be subject to additional inquiries and security clearances which may restrict or significantly delay travel to the US.

Q3: Who is subject to specific restrictions on travel for designated countries?

Nationals of one of the designated countries – by birth or citizenship – who are impacted by the restrictions may be barred from entry to the United States, 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.

The restrictions apply only to nationals from designated countries who:

  • are outside the US on effective date;
  • do not have valid visa on applicable effective date; and
  • do not qualify for a visa or other travel document under Section 6(d) of the Proclamation as it pertains to individuals whose visas were cancelled or revoked by Executive Oder 13769 of January 27, 2017.

The Proclamation specifies restrictions for certain types of nonimmigrants (temporary visitors) and immigrants (those seeking to enter the US for permanent residence).  North Korea and Syria are subject to the broadest restrictions on entry.

The administration has provided a breakdown and country-by-country summary of the restrictions; see Department of State Summary by country.

Rules and implementation of procedures are subject to change without notice.  Nationals of the designated countries or other individuals who believe they may be subject to the restrictions should contact immigration counsel for specific legal advice before departing from or planning travel to the United States.

Q4:  Who is not subject to the travel ban? 

The suspension of entry for nationals of the designated countries does not apply to:

  • US citizens and lawful permanent residents (“green card” holders);
  • Foreign nationals admitted or paroled into US on or after effective date;
  • Foreign nationals with transportation letters, boarding foils, or advance parole document valid on effective date or issued thereafter;
  • Dual nationals using the passport from a non-designated country;
  • Foreign nationals traveling on diplomatic visas; and
  • 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.

Additionally, as noted at Q3, above, the restrictions generally do not apply to nationals from designated countries who

  • are in the US on the effective date;
  • have valid visa on applicable effective date; and
  • qualify for a visa or other travel document under Section 6(d) of the Proclamation as it pertains to individuals whose visas were cancelled or revoked by Executive Oder 13769 of January 27, 2017.

Entry Before October 18, 2017 by Certain Designated Nationals with a Bona Fide Relationship with a US Entity or Person

Foreign nationals from Iran, Libya, Somalia, Syria and Yemen with a “bona fide relationship” with a person or entity in the US who seek entry prior to October 18, 2017 (see below for details) may be exempt from the restrictions.  The new Proclamation ends this exemption effective October 18, 2017; however, close ties to the US may still be a factor in granting a waiver on other grounds.

Bona Fide Relationship with 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 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 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. The Proclamation provides examples of circumstances where a waiver may be appropriate if the foreign national:

  • has previously been admitted to the United States for a continuous period of work, study, or other long-term activity, is outside the United States on the applicable effective date, seeks to reenter the United States to resume that activity, and the denial of reentry would impair that activity;
  • has previously established significant contacts with the United States but is outside the United States on the applicable effective date for work, study, or other lawful activity;
  • seeks to enter the United States for significant business or professional obligations and the denial of entry would impair those obligations;
  • seeks to enter the United States to visit or reside with a close family member (e.g., a spouse, child, or parent) who is a United States citizen, lawful permanent resident, or alien lawfully admitted on a valid nonimmigrant visa, and the denial of entry would cause the foreign national undue hardship;
  • is an infant, a young child or adoptee, an individual needing urgent medical care, or someone whose entry is otherwise justified by special circumstances;
  • has been employed by, or on behalf of, the United States Government (or is an eligible dependent of such an employee), and can document that he or she has provided faithful and valuable service to the United States Government;
  • is traveling for purposes related to an international organization designated under the International Organizations Immunities Act (IOIA), 22 U.S.C. 288 et seq., traveling for purposes of conducting meetings or business with the United States Government, or traveling to conduct business on behalf of an international organization not designated under the IOIA;
  • is a Canadian permanent resident who applies for a visa at a location within Canada;
  • is traveling as a United States Government-sponsored exchange visitor; or
  • is traveling to the United States, at the request of a United States Government department or agency, for legitimate law enforcement, foreign policy, or national security purposes.

Due to uncertainties surrounding implementation of this new Proclamation, 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.

Q5: 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.

Q6: 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 or Proclamation 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.

Q7: 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 Proclamation and Executive Orders do 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.  Questioning may be extensive 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.

Q8: 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 staffing shortages, and allocation of additional resources is uncertain. 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?

In April 2017, President Trump signed an Executive Order entitled “Buy American, Hire American,” which instructed the U.S. Department of Justice, Department of State, Department of Labor, and Department of Homeland Security to propose new rules, guidance, and reforms to ensure stricter enforcement of all current laws, “protect the interests of U.S. workers,” and prevent fraud and abuse within the U.S. immigration program. In August 2017, the Foreign Affairs Manual was updated to provide guidance to consular officers administering the issuance of U.S. visas.

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 the Gibney Alert dated 4/19/2017.

Since the Order was issued, clients and immigration advocates have reported a significant increase of the number of Requests for Evidence (RFEs) issued on immigration filings with the U.S. Citizenship & Immigration Services (USCIS) including H-1B specialty occupation petitions (cap-subject and change of employer) and L-1B specialized knowledge intracompany transferee petitions. Some clients have also reported an uptick in visa refusals and denials at consular posts abroad, as well as more difficult screening questions, for various non-immigrant visa types including L-1 intracompany transferees and E-2 treaty investors.

Additionally, the USCIS will begin requiring in-person interviews for employment-based Adjustment of Status (aka green card) applicants starting October 1, 2017.  Current USCIS policy allows for waivers of in-person interviews for the majority of employment-based non-immigrant visa holders.

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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