Visa Lawyer Blog

Articles Posted in Trump administration

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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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In response to a memorandum issued to United States consulates and embassies around the world by President Trump and his administration on March 6, consular officials at U.S. embassies around the world are now taking tougher measures to enhance security screening of U.S. visa applicants to prevent potential security threats from entering the United States. Enhancing vetting procedures are intended to target individuals from certain “countries of concern” including the six countries of concern listed in the President’s travel ban: Syria, Sudan, Somalia, Yemen, Libya, and Iran, as well as others.

Applicants for U.S. visas from “countries of concern” can expect to undergo additional vetting procedures immediately. The U.S. Department of State has been using a supplemental questionnaire called the DS-5535 since May 25, 2017 which asks both immigrant and non-immigrant visa applicants a series of detailed questions to help consular officials determine whether a visa applicant must go through enhanced vetting to determine whether the individual poses a national security threat, or other potential threat to the United States. The questionnaire has been used as a temporary emergency measure in response to the President’s March memo, which called for enhanced screening of visa applicants, and what he has called “extreme vetting” of foreign nationals admitted to the United States.

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Credit: Mathia Swasik

On May 23, 2017, President Donald Trump unveiled his controversial budget proposal “A New Foundation for American Greatness” for FY 2018 which intends to make good on his promise to crack down on illegal immigration and apprehend undocumented immigrants with a criminal record. In a message accompanying his budget proposal, the President stated, “In these dangerous times, our increased attention to public safety and national security sends a clear message to the world — a message of American strength and resolve. It follows through on my promise to focus on keeping Americans safe, keeping terrorists out of our nation, and putting violent offenders behind bars.” To that end, the President has requested an additional $2.7 billion in funding to bolster border security and immigration enforcement measures. In addition to tightening the southern border, the budget proposal seeks to prevent undocumented immigrants from receiving tax credits by requiring individuals claiming child tax credits to provide a verifiable Social Security Number valid for employment purposes.

The budget also takes aim against “sanctuary cities” throughout the United States which serve as haven communities for undocumented immigrants. One of the proposals seeks to force local governments to cooperate with federal immigration authorities by detaining undocumented immigrants in local jails, and complying with orders from immigration officials to assist federal authorities in holding and detaining undocumented immigrants for removal. Noncompliance would result in withholding of federal grants.

Although federal law requires that local governments allow employees to share information about undocumented immigrants with federal officials, local governments are not required to assist federal law enforcement in the detention process, those that do, do so voluntarily. A provision in the President’s budget proposal attempts to change this by changing federal law to force local government to comply with federal requests to detain undocumented immigrants in local jails. As part of this provision, federal grants would be disseminated only to cities complying with federal authorities.

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The United States Court of Appeals for the Fourth Circuit has handed down a ruling this morning, dealing yet another blow to the President’s embattled travel ban. The Court has refused to reinstate the President’s 90-day travel ban on Muslims from Iran, Syria, Sudan, Libya, Somalia, and Yemen and the 120-day travel ban on refugees. The Virginia court held that the President’s travel ban does not pass constitutional muster, given that it violates the establishment clause of the United States Constitution. The ruling upholds a lower court’s decision to block the President’s revised travel ban. The Fourth Circuit was forced to weigh the importance of the President’s travel ban in relation to our national security against potentially impinging on a person’s freedom of religion. In their decision, the Fourth Circuit stated that they did not believe that the President’s executive order “has more to do with national security than it does with effectuating the president’s proposed Muslim ban.”

As we previously reported, during the month of March, the President revised his travel ban after the Ninth Circuit Court rejected major portions of the travel ban declaring it unconstitutional. The President revised the travel ban hoping that the revised version would pass constitutional muster and would not be blocked by the federal courts. The revised executive order which was set to go into effect March 16, 2017, called for a 90-day travel ban on non-immigrants of six Muslim countries including Syria, Libya, Iran, Somalia, Sudan, and Yemen, and a 120-day travel ban on the admission of refugees into the United States.

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New developments have recently unfolded since the passage of Texas’ controversial SB4 law—a law that bans sanctuary cities in the state of Texas, and requires local jurisdictions and law enforcements officials to cooperate with federal immigration authorities to apprehend undocumented immigrants in the state of Texas.

The controversial bill has suffered its first blowback. The border town of El Cenizo has sued the state arguing that the ban is unconstitutional. The Mayor of El Cenizo, Raul Reyes, told reporters that the bill “hinders the relationship between police departments and the community,” and “decreases criminal activity reports which opens up the door to more domestic violence and more sexual assaults against immigrants.” The city of El Cenizo has been joined in their lawsuit against the state by Maverick county, El Paso county, and the League of United Latin American Citizens. The small town of El Cenizo, Texas first came to national attention when the Spanish language was declared the city’s official language.

The Texas Attorney General envisioned a pushback from “sanctuary cities.” At about the same time that the governor of Texas signed SB4 into law, the attorney general sought to protect the state against future challenges to the law, by filing a lawsuit against known “sanctuary cities” in the state of Texas that have limited the federal government’s power to detain undocumented immigrants by refusing to cooperate with federal immigration officials. The lawsuit was filed on May 7, 2017 in the United States District Court for the Western District of Texas. The state of Texas filed the lawsuit so that they could have a single court ruling upholding the constitutionality of SB4 that would invalidate any lawsuits filed against the state.

Among the cities which have been identified as “sanctuary cities” that have been noncompliant with the federal government’s demands are: Travis County, the city of Austin, and other local officials including Travis County Sheriff Sally Hernandez, who has limited cooperation between local law enforcement and federal immigration officials.

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Today in a Seattle courtroom the Ninth Circuit Court of Appeals heard arguments on Trump’s revised travel ban. As you may recall President Trump issued a revised executive order in March to salvage his embattled travel ban, barring the entry of foreign nationals from Iran, Syria, Sudan, Libya, Somalia, and Yemen for a 90-day period and refugees for 120 days. For over an hour, a three-judge panel listened to arguments from the U.S. Solicitor General Jeffrey Wall arguing on behalf of the Trump administration and Neal Katyal, an attorney representing the state of Hawaii and individuals challenging the President’s revised travel ban. The three-judge panel included Judge Ronald Gould, a moderate judge from Seattle, Washington, Judge Michael Hawkins, a moderate to liberal judge from Phoenix, Arizona, and Judge Richard Paez a liberal judge from Pasadena, California. The central question before the court was whether the President’s revised travel ban amounts to a violation of the U.S. Constitution based on religious discrimination.

The mood in the courtroom was contentious. Judges probed the Solicitor General to determine whether the President’s revised travel ban was specifically aimed at Muslims. The Solicitor General argued that the executive order was neutrally worded and that there were no indications in the language of the President’s executive order to indicate that there was any intent to discriminate the Muslim population. In a heated exchange, liberal Judge Richard Paez countered that even if the President’s executive order was “neutrally worded,” taking a seemingly “neutral” stance does not mean an executive order is devoid of discriminatory intent. Judge Paez noted that the executive order that interned Japanese Americans during World War II was also neutrally worded given that there was no reference to Japanese people specifically, but that the President at the time did intend to discriminate that particular demographic. During oral argument, Judge Paez commented on remarks made by the President during his campaign which have indicated his intent to target Muslims specifically with his executive order. Paez stated that Trump made references to a Muslim ban “in the midst of a highly contentious campaign” raising questions about whether the court should consider taking that into account.

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8358967030_aef1cd0812_zThe Trump administration is quickly mobilizing resources to facilitate the massive deportation of undocumented persons living and working in the United States, and to secure the U.S. border.

A new 90-day progress report prepared by the Department of Homeland Security outlines how the agency is planning on implementing the provisions of the Executive Order 13767 entitled “Border Security and Immigration Enforcement Improvements” signed by President Trump earlier this year. Although the progress report is only a preliminary assessment of how the agency will enforce the executive order, the report reflects what immigration enforcement might look like in the near future.

Securing the border: Regarding border security, the progress report outlines that U.S. Customs and Border Protection is taking immediate action to plan, design, and construct a physical wall on the southern border between the United States and Mexico. Specifically, the report states that CBP is partnering with the U.S. Army Corps of Engineers to design and construct prototypes to expand the southern border, and has submitted a request for funding from Congress for $20 million.

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Today, March 30, 2017, a federal judge from the state of Hawaii extended a court order blocking the President’s new travel ban from being enforced. In a 24-page decision, Judge Derrick Watson of Hawaii issued a preliminary injunction bringing the President’s executive order to a screeching halt indefinitely. Judge Watson first gained national attention two weeks ago, following his issuance of a temporary restraining order or TRO, which prevented the federal government from enforcing all provisions of the travel ban for a 14-day period. Watson’s TRO was meant to provide temporary relief pending further litigation. The state of Hawaii asked the judge to convert the TRO into a longer-lasting form of relief known as a preliminary injunction, at least until a higher court could issue a permanent ruling. The President’s embattled executive order sought to prevent the admission of foreign nationals from 6 Muslim majority countries including Syria, Somalia, Sudan, Iran, Libya and Yemen, for a 90-day period as well as the admission of Syrian refugees for a 120-day period.

In his decision Judge Watson wrote that he based his grant of the preliminary injunction on the strong likelihood that the state of Hawaii would succeed in proving that the travel ban violated the establishment clause of the U.S. Constitution which protects freedom of religion. In addition, the state of Hawaii successfully argued that absent the provisional relief, citizens of the state would be irreparably harmed. Attorneys for the state added that the state’s national economy would suffer in the absence of relief, and that its state universities would also be harmed by the President’s executive order in both the state’s ability to retain and recruit foreign born students and faculty.

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