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Last week, Thursday, July 13, 2017, U.S. District Court Judge Derrick K. Watson handed down a ruling which exempts extended family members from President Trump’s travel ban including: “grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States.” These familial relationships are to be considered bona fide relationships that qualify such foreign nationals from gaining admission into the United States.  Thursday’s ruling also makes refugees with assurances from a resettlement agency, exempt from the President’s travel ban.

Last month, the U.S. Supreme Court announced that they would hear arguments challenging the President’s travel ban when the Court reconvenes in October of next year. As part of their announcement, the U.S. Supreme Court ruled that, in the interim, the President could enforce the travel ban against foreign nationals from Iran, Syria, Sudan, Libya, Yemen, and Somalia, who lack a credible “bona fide” relationship to a person residing in the United States, or entity such as an employer, religious, or academic institution.

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In their ruling, the Supreme Court however provided little guidance on what types of familial relationships would qualify as a credible bona fide relationship. The Supreme Court vaguely stated that “close familial” relationships would qualify as a bona fide relationship, citing mother-in-law’s and spouses as an example of a qualifying familial relationship. However, the Court was silent regarding extended family members.

This prompted the State of Hawaii to seek clarification from federal judge Watson, regarding what types of familial relationships would be subject to the ban. The State of Hawaii argued that the Trump administration had wrongfully interpreted the Court’s ruling to exclude close family members such as grandparents, after the administration issued a diplomatic cable to U.S. consular posts and embassies abroad that defined a “close familial relationship” to include parents, children, and in-laws, but not grandparents, grandchildren, aunts, uncles, and cousins.

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It’s official. The Department of Homeland Security has rolled out a plan to delay the effective date of the International Entrepreneur Rule, which was set to be enforced on July 17, 2017, to March 14, 2018, at which time the Department will seek comments from the public to rescind the rule, in accordance with Executive Order 13767, “Border Security and Immigration Enforcement Improvements” signed by President Trump on January 25, 2017.

Written comments from the public are due on or before 30 days from the date of publication in the federal register. It is strongly advised that all affected foreign entrepreneurs, business owners, attorneys, immigration advocates etc. leave a public comment identified by DHS Docket No. USCIS-2015-0006, online or by mail detailing the adverse effect that rescinding the rule would have on the U.S. economy and the expansion of jobs in the United States.

Public Comments

Online: Federal eRulemaking Portal: http://www.regulations.gov. Follow the website instructions for submitting comments.

This document is scheduled to be published in the Federal Register on 07/11/2017 and available online at https://federalregister.gov/d/2017-14619, and on FDsys.gov

By Mail: You may submit comments directly to U.S. Citizenship and Immigration Services (USCIS) by sending correspondence to Samantha Deshommes, Chief, Regulatory Coordination Division, Office of Policy and Strategy, UCSIS, DHS, 20 Massachusetts Avenue, NW, Washington, DC 20529. Remember to reference DHS Docket No. USCIS-2015-0006 in all mail correspondence.

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ICE Memo Discusses Immigration Enforcement of EOs 13767 and 13768  

In a new memorandum entitled “Implementing the President’s Border Security and Immigration Enforcement Policies,” U.S. Immigration and Customs Enforcement (ICE), outlines the President’s policies going forward in implementing Executive Order 13767, “Border Security and Immigration Enforcement Improvements,” and Executive Order 13768 “Enhancing Public Safety in the Interior of the United States,” signed by the President on January 25, 2017.

The memorandum makes clear that enforcement and removal operations will be taken immediately against all removable aliens, prioritizing expedited removal of aliens with criminal history or prior immigration violations such as fraud or material misrepresentation. Accordingly, the Department of Homeland security “will no longer exempt classes or categories of removable aliens from potential enforcement” under EO 13767 and 13768.

Under these directives, officers will prioritize efforts to remove individuals who:

  • Have been convicted of any criminal offense;
  • Have been charged with any criminal offense that has not been resolved;
  • Have committed acts which constitute a chargeable criminal offense;
  • Have engaged in fraud or willful misrepresentation in connection with any official matter before a governmental agency;
  • Have abused any program related to receipt of public benefits;
  • Are subject to a final order of removal but have not complied with their legal obligation to depart the United States; or
  • In the judgment of an immigration officer, otherwise pose a risk to public safety or national security.

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In this post, we bring you the top three mistakes to avoid when applying for a B-1/B-2 non-immigrant visa at a United States consulate or embassy abroad. All too often clients contact our office feeling distraught after receiving a B-1/B-2 visa denial from a consular official. The good news is that a B visa denial can be easily avoided by understanding the common mistakes that people make when pursuing the B nonimmigrant visa.

First, it is important to understand who is eligible to apply for a B non-immigrant visa.

B-1 versus B-2

The B-1 temporary business visitor visa is reserved for individuals who seek to travel to the United States for a temporary period to participate in a business activity of a commercial or professional nature. Examples of individuals who qualify for this type of visa include: individuals consulting with business associates, individuals negotiating contracts, settling an estate, participating in short term training, entrepreneurs who wish to travel to the United States to research the market for a potential business venture, individuals traveling for a scientific, educational, professional, or business convention, or conference, etc.

Individuals who typically apply for this type of visa are entrepreneurs and investors who wish to apply for an E-2 visa in the future and who need to visit the United States to research the market or other business activities relating to researching the viability of the business venture.

B-1 temporary business visitors may be eligible to remain in the United States anywhere from 1-6 months—with 6 months being the maximum. Ultimately, it will be up to the consular/embassy official to determine the length of your period of stay. Typically, applicants are granted an initial period of stay of 6 months. B-1 visa holders may extend their stay for an additional 6 months if it is necessary for them to remain in the United States for an extended period to complete their temporary business activity.

Similarly, the B-2 temporary visitor visa is reserved for individuals who wish to enter the United States temporarily for tourism, pleasure, or visitation. Examples of individuals who qualify for this type of visa include tourists, individuals who wish to visit friends, or relatives, individuals seeking medical treatment, amateur artists, musicians, or athletes who wish to participate in events or contests that do not provide compensation, and individuals who wish to enroll in a short recreational course of study that does not count for credit toward a degree. The length of stay granted to a B-2 temporary visitor is the same as that of a B-1 temporary business visitor.

Who may not apply for a B visa?

Individuals who wish to immigrate to the United States and remain in the United States permanently, or individuals who wish to study, seek employment, etc. may not apply for a B non-immigrant visa.

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As previously reported, the U.S. Supreme Court recently announced that the court will be hearing arguments in defense of and in opposition to the President’s controversial executive order “Protecting the Nation from Foreign Terrorist Entry into the United States,” also known as the “travel ban” in October of this year.

In the meantime, the Supreme Court has allowed some parts of the President’s executive order to take effect until it makes a final ruling later this year. This means that certain foreign nationals will be prevented from gaining admission to the United States. Today, the Department of State announced that per the Supreme Court’s instructions, the President’s 90-day temporary suspension will be implemented worldwide at 8:00 PM (EST) beginning today, June 29, 2017.

Who will be affected?

Foreign nationals from the six countries of concern mentioned in the President’s executive order, including Syria, Sudan, Somalia, Iran, Libya, and Yemen, who do not have a bona fide relationship with a person, entity (such as a religious or academic institution), or employer in the United States, will not be granted admission to the United States for a period of 90 days, beginning, June 29, 2017 8:00 PM EST, unless the foreign national can demonstrate that they have a credible qualifying bona fide relationship with a person, employer, or entity in the United States. Such individuals may qualify for a case-by-case waiver.

In addition, refugees will not be admitted to the United States for a period of 90 days, beginning June 29, 2017 8:00 PM EST, unless they can demonstrate a legitimate claim of “concrete hardship,” to be weighed against the country’s concern for its national security.

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On Monday morning, the United States Supreme Court announced that it will hear arguments for and against the President’s controversial executive order, “Protecting the Nation from Foreign Terrorist Entry into the United States,” otherwise known as the “travel ban,”when it reconvenes in October of this year. The President’s executive order seeks to block the admission of foreign nationals from 6 predominantly Muslim countries (Syria, Sudan, Somalia, Iran, Libya, and Yemen) for a period of 90 days, and suspend the admission of refugees for a period of 120 days.

This announcement sets in motion the end of a long legal battle challenging the scope of the President’s executive power on immigration. This Fall, the Court will be tasked with determining whether the ban violates the establishment clause of the U.S. Constitution, as well as key provisions of the Immigration and Nationality Act, signed into law by Congress.

In the meantime, the Supreme Court has announced, in their per curiam opinion, that a limited version of the President’s executive order will remain in effect, until the Court makes its final ruling. In their opinion, the Court ruled that foreigners who have no ties or relationships in the United States may be prohibited from entering the country. This would include individuals applying for visas who have never been to the United States, or have no family, business, or other ties.

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On June 13, 2017, the American Immigration Lawyers Association (AILA) spoke with Charles Oppenheim, the Chief of the Visa Control and Reporting Division for the U.S. Department of State, to discuss current trends trends and future projections for various employment and family preference categories.

Family preference and employment immigrant categories are subject to numerical limitations and are divided by preference systems and priority dates on the Visa Bulletin. Family-sponsored preference categories are limited to a minimum of 226,000 visas per year, while employment-based preference categories are limited to a minimum of 140,000 visas per year. The Visa Bulletin is a useful tool for aliens to determine when a visa will become available to them so that they may apply for permanent residence. Applicants who fall under family preference or employment categories must wait in line until a visa becomes available to them in order to proceed with their immigrant visa applications. Once the immigrant’s priority date becomes current, per the Visa Bulletin, the applicant can proceed with their immigrant visa application.

Current Trends & Future Projections:

Employment-based preference categories:

EB-1 China and India:  

The final action date imposed on EB-1 China and EB-1 India (January 1, 2012) during the month of June of 2017, will remain and is expected to remain through the end of this fiscal year.

Per Charles Oppenheim, “Due to the availability (through May) of “otherwise unused numbers” in these categories, EB-1 China has used more than 6,300 numbers and EB-1 India has used more than 12,900 so far this fiscal year.”

EB-2 Worldwide:

Good news! EB-2 Worldwide remains current due to a slight decrease in demand in the second half of May and a steady level of demand in the month of June.

Projection: Oppenheim expects a final action cutoff date to be imposed on this category in August which is expected to be significant, however this category is expected to become current again on October 1, 2017.

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As previously reported, the Visa Waiver Program Improvement and Terrorist Prevention Act of 2015, was a bill that was signed into law at the end of 2015, which imposed new restrictions on the use of the Visa Waiver Program (VWP) for certain travelers. In this post, we update our readers regarding new information provided by CBP in their newly updated FAQ page.

What is the Visa Waiver Program?

The Visa Waiver Program allows citizens of designated countries to apply for admission to the United States as visitors (traveling for holiday, business, or in transit) without having to obtain a non-immigrant B1/B2 visa at a U.S. Embassy or Consulate abroad, using a system known as ESTA or Electronic System for Travel Authorization.

To be eligible to travel to the United States under the visa waiver program, you must be a citizen of one of thirty-eight countries eligible to participate in the program, you must have a valid machine-readable passport issued by the participating country that is valid for at least 6 months before your planned departure, you must apply for and have an approved ESTA before your proposed travel, and you must intend to remain in the United States for 90 days or less.

You may not be eligible to travel under the VWP if you have been denied a U.S. visa in the past, or have an immigration violation. In this case, you must apply for a visitor visa at a U.S. Consulate abroad, even if your country participates in the VWP.

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In preparation for its legal showdown at the United States Supreme Court, on Wednesday, the Trump administration moved to amend the starting date of the President’s executive order entitled “Protecting the Nation from Foreign Terrorist Entry into the United States,” an order which seeks to bar the admission of foreign nationals from Iran, Syria, Sudan, Libya, Somalia, and Yemen for a 90-day period. The Trump administration has moved to amend or change the starting date of the 90-day period of the order’s enforcement to avoid the case becoming “moot” when it reaches the Supreme Court, given that the period of the executive order’s enforcement was set to begin on March 16, 2017, and expire on Wednesday, June 14, 2017 thereafter. This 90-day period would essentially have given the Trump administration enough time to introduce enhanced security measures in its vetting of visa applicants.

Because the executive order was blocked by a federal judge from the state of Hawaii on Wednesday, March 15, 2017 (a day before the enforcement period was set to begin) with the issuance of a Temporary Restraining Order, the President’s executive order did not go into effect on March 16, 2017 as he had planned. The Trump administration’s efforts to halt the admission of Muslim foreign nationals from “countries of particular concern” and refugees was put on hold until the appellate courts ruled on the constitutionality of the travel ban.

Accordingly, the White House recently issued a memo indicating that parts of the executive order that have been placed on hold (pending litigation) cannot expire before they go into effect, and that the start date of the executive order would begin at the time the court injunctions (if at all) are lifted. In doing so, the Trump administration hopes that if the Supreme Court upholds the travel ban, the travel ban will go into effect immediately after the ruling is made.

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The United States Court of Appeals for the Ninth Circuit has dealt yet another blow to President Donald Trump’s embattled executive order entitled “Protecting the Nation From Foreign Terrorist Entry Into the United States,” an order which temporarily prevented the admission of foreign nationals from six predominantly Muslim countries (Syria, Sudan, Somalia, Iran, Libya, and Yemen) and the admission of all refugees. As previously reported, the case reached the Ninth Circuit Court of Appeals, where a three-judge panel heard arguments against the President’s travel ban, brought by the state of Hawaii as well as other individual Plaintiffs.

Together, Judge Hawkins, Gould, and Paez, grilled the U.S. Solicitor General, Jeffrey Wall, representing the U.S. government, and attorney Neal Katyal, representing the state of Hawaii, concerning the constitutionality of the President’s executive order. Like the Fourth Circuit Court of Appeals, the Ninth Circuit Court once against decided against the President’s executive order, albeit for different reasons. The Ninth Circuit Court’s ruling against the travel ban is the latest in a string of court rulings rejecting the President’s executive order on statutory grounds.

In their 86-page opinion, the Ninth Circuit Court of Appeals rejected the executive order on statutory grounds, stating that the President had exceeded his executive power and made an inadequate judgment call with the issuance of his executive order. “The Immigration and Nationality Act (INA) gives the President broad powers to control the entry of aliens, and to take actions to protect the American public. But immigration, even for the President, is not a one-person show,” stated the Court, referring to the nation’s system of checks and balances. The Court added “we conclude that the President, in issuing the Executive Order, exceeded the scope of the authority delegated to him by Congress.” The Court further stated that the President’s executive order is at odds with various provisions of the Immigration and Nationality Act established by Congress, including a provision that prohibits nationality-based discrimination and a provision that requires the President to follow specific protocol when setting the annual cap on admission for refugees. The lower’s courts injunction on the travel ban will remain in place until a decision is issued by the U.S. Supreme Court.

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