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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 26, 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. The decision allows the temporary suspension of entry by foreign nationals from Iran, Libya, Somalia, Sudan, Syria and Yemen who lack any “bona fide relationship with any person or entity in the United States.”  In effect, the Order can only restrict entry of a very narrow class of foreign nationals.

The Court cited examples of bona fide relationships, including “a worker who accepted an offer of employment from an American company or a lecturer invited to address an American audience.” The Court stated that foreign nationals who wish to enter the U.S. to live with or visit a family member also meet the criteria for a bona fide relationship. With regards to entities, the relationship must be “formal, documented and formed in the ordinary course.”

The Executive Order is expected to go into effect within 72 hours of the Supreme Court decision and continue for at least 90 days.  On June 26, 2017, DHS issued a statement confirming that it would provide details on implementation after consultation with DOJ and DOS. DHS states that implementation “will be done professionally, with clear and sufficient public notice, particularly to potentially affected travelers, and in coordination with partners in the travel industry.”

See FAQs for a summary of the key provisions for Executive Orders impacting immigration and travel by foreign nationals.


Travel Precautions:
Due to uncertainties surrounding implementation of various Executive Orders, foreign nationals who may be impacted by the orders or otherwise believe they may be the target of heightened scrutiny based on nationality, country of origin, prior arrest, criminal issues, prior security delays or other concerns should contact immigration counsel prior to departing the U.S. or making plans to enter the U.S. or apply for a visa.

Since the release of the initial Executive Order in January 2017, individuals have reported inconsistent application of rules, denial of entry onto international flights, extended wait times at U.S. Ports of Entry due to extra screening, as well as hours of detention and intrusive questioning (including separating family members and reviewing cell phones, laptops, and social media accounts) without allowing access to legal counsel. The administration also seeks to implement “enhanced vetting” of all visa applicants at consulates around the world. All travelers and visa applicants may be subject to increased scrutiny or delays.

Please contact immigration counsel for specific legal advice on your case.


FAQs

FAQs (last updated June 26, 2017):

For the most recent updates, visit our news page.

Topics:

General Information on Immigration Policy Changes and Travel
New Executive Order Issued March 6, 2017 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.


New Executive Order Restricting Entry of Nationals from Designated Countries – Currently Under Review by US Supreme Court

Q1: What is the impact of the Executive Order signed on March 6, 2017 and partially reinstated by the Supreme Court on June 26, 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.  The US Supreme Court allowed for the suspension of entry for foreign nationals from Iran, Libya, Somalia, Sudan, Syria and Yemen who lack any “bona fide relationship with any person or entity in the United States.”

The Court cited examples of bona fide relationships, including “a worker who accepted an offer of employment from an American company or a lecturer invited to address an American audience.” The Court stated that foreign nationals who wish to enter the U.S. to live with or visit a family member also meet the criteria for a bona fide relationship. With regards to entities, the relationship must be “formal, documented and formed in the ordinary course.”  For more information, view the full text of the Supreme Court decision.

The Executive Order is expected to go into effect within 72 hours of the Supreme Court decision and continue for at least 90 days. The Court will hear arguments on the case in October 2017 and will likely issue a final decision sometime during the fall.

What This Means for Foreign Nationals:

  • Foreign nationals of the six countries noted above should consult with immigration counsel prior to departing from or traveling to the United States.
  • Certain persons from the six countries are exempt, including US citizens, certain dual nationals, lawful permanent residence, valid visa holders, and others.  See Question 3 below.
  • Certain other persons from the six countries may be able to qualify for a waiver and should consult with an immigration attorney to determine their eligibility.
  • At this time it is uncertain how the governing agencies will implement the Executive Order. We will continue to closely monitor issues relating to this Supreme Court decision.

The revised March 6 Executive Order aimed to revoke and replace the original Executive Order issued January 27, 2017, which was suspended pursuant to a Temporary Restraining Order issued by the Ninth Circuit Court of Appeals in State of Washington and State of Minnesota v. Trump. Key provisions of the revised order include:

  • Directing agencies to implement additional screening standards for foreign nationals seeking U.S. entry, visa issuance, and immigration benefits and report on their efforts;
  • Restrictions on entry, visa issuance and immigration benefits for nationals – by birth or citizenship – of “designated countries”;
  • Suspension of the U.S. refugee admissions program for 120 days (for all countries) and limiting total number of refugee admissions; and
  • Suspension of the Visa Interview Waiver Program, requiring all visa applicants to apply for visas in person.

For the full text of the order, please visit the White House website. Department of Homeland Security has also released series of Questions & Answers, and additional details are expected following the Supreme Court’s decision on June 26, 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 U.S. without notice.

In the revised order, Iraq was removed from the 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 U.S.

Q3: What do the Executive Orders mean for nationals of one of the designated countries? 

Nationals of one of the designated countries – by birth or citizenship – would be barred from entry to the U.S. for at least 90 days, unless they qualify under an exemption or an officer approves a waiver.

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

  • U.S. citizens;
  • Lawful permanent residents (“green card” holders);
  • Dual nationals using the passport from a non-designated country;
  • 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
  • Persons applying for entry to the U.S. pursuant to a valid visa obtained prior to the effective date of March 16, 2017.

Waivers
The revised Executive Order also provided for limited 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.

Pursuant to the US Supreme Court decision on June 26, 2017, foreign nationals may be eligible for entry if they can demonstrate a “bona fide relationship with any person or entity in the United States.”

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

There may be significant risks 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 U.S. citizens originally from one of the designated countries? 

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

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: Will the order impact families of principal U.S. visa holders sponsored by employers if family members are from one of the designated countries? 

Yes. Family members on visas who are nationals of one of the designated countries would be impacted directly as outlined above and should obtain advice legal advice prior to travel.

Q8: What is the impact on international travel or immigration processing generally? 

All travelers should expect delays at ports of entry into the U.S. In addition, the Executive Order eliminated procedures to waive interviews for applicants renewing their visas at the U.S. 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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