On Monday, December 4, 2017, the United States Supreme Court issued an order allowing enforcement of the President’s latest travel ban in its entirety, pending legal challenges in lower courts. In its brief order, the Court signaled its desire for the appellate court to address any challenges to the travel ban, swiftly. Justices Ruth Bader Ginsburg and Sotomayor were the only justices who would have blocked the latest travel ban from going into effect.
The court’s order means that the Trump administration may enforce all of the provisions of the President’s latest travel ban, until the federal courts hand down rulings on the constitutionality of the ban. As you may recall, non-US citizens affected by travel ban 3.0 include nationals of Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen, and Somalia.
The travel ban DOES NOT affect lawful permanent residents of the United States (green card holders), foreign nationals granted asylum, refugees admitted to the United States, or dual nationals traveling on a passport from a non-designated country.
On October 17, 2017, federal judge Derrick Watson of the U.S. District Court for the District of Hawaii, issued a temporary restraining order preventing the government from enforcing Sections 2(a), (b), (c), (e), (g), and (h) of the Presidential Proclamation 9645, “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or other Public-Safety Threats” signed by the President on September 24, 2017. These sections of the Presidential Proclamation were to be enforced at 12:01 a.m. eastern daylight time on October 18, 2017.
As a result, foreign nationals from Chad, Iran, Libya, Syria, Yemen, and Somalia will NOT be affected by the restrictions outlined in the Presidential Proclamation and may continue to travel freely to the United States. Visa applications for these countries will continue to be adjudicated in accordance with existing immigration law, and visa processing standards, irrespective of the restrictions outlined in the Presidential Proclamation.
However, the court order does notprevent the government from implementing restrictions on foreign nationals from North Korea and Venezuela. In addition, the order does not prevent the government from scrutinizing the adjudication of visas for Iraqi nationals and their admittance to the United States. Sections (d) and (f) of the Proclamation, outline the provisions that remain in force. Restrictions on the entry of foreign nationals from North Korea, Venezuela, and Iraq began on Wednesday, October 18, 2017 and will continue until further notice. The restrictions on Venezuela as you will see below are the most lenient of the restrictions.
Restrictions on North Korean nationals: Entry of foreign nationals from North Korea has been suspended for all immigrants and non-immigrants (including diversity visa holders).
Just one day before Presidential Proclamation No. 9645, “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats,” was set to go into effect, a federal judge in Hawaii issued a ruling blocking portions of the Presidential Proclamation from being enforced on a majority, but not ALL, of the countries, listed in the Proclamation.
The Presidential Proclamation, commonly referred to in the media as ‘travel ban 3.0’ set out to suspend the entry of foreign nationals from eight “countries of identified concern,” and the admission of foreign nationals from those countries was to remain limited until further notice.
The countries to be affected by travel ban 3.0 included: Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen, and Somalia. A federal judge from the state of Hawaii by the name of Derrick Watson has granted a temporary restraining order preventing the government from suspending the admission of foreign nationals from the following countries: Chad, Iran, Libya, Syria, Yemen, and Somalia, but DOES NOTprevent the government from suspending the admission of foreign nationals from North Korea and Venezuela, and from imposing stricter screening standards on Iraqi nationals. The restrictions on foreign nationals from North Korea, Venezuela, and Iraq will continue to be enforced according to the Proclamation, beginning today, Thursday, October 19, 2017. Restrictions on North Koreans and Venezuelans will likely remain indefinitely, given that the U.S. government has no formal diplomatic avenues for communication with those countries.
Judge Derrick Watson wrote in his opinion that the latest revision of the ban, “suffers from precisely the same maladies as its predecessor,” and “lacks the sufficient finds that the entry of more than 150 million nationals from [the] specified countries would be ‘detrimental to the interests of the United States,” and “plainly discriminates based on nationality.”
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.
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.
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.
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.
The newly appointed U.S. Secretary of State Rex Tillerson is quickly mobilizing government resources to increase scrutiny and implement tougher screening procedures for applicants who are applying for a U.S. visa or other immigration benefit at U.S. Consular posts and Embassies abroad. Reuters has reported that Secretary Tillerson has sent a series of internal cables (four in total) to consulates and embassies abroad instructing them of new measures to increase vetting of visa applicants (both immigrant and non-immigrant). These cables are as follows: (1) Cable 23338 entitled “Guidance to Visa-Issuing Posts” issued on March 10, 2017; (2) Cable 24324 entitled “Implementing Immediate Heightened Screening and Vetting of Visa Applications” issued March 15, 2017; (3) Cable 24800 entitled “Halt Implementation” of President Trump’s new travel ban due to a temporary restraining order by a federal court, issued on March 16, 2017; and finally (4) Cable 25814 entitled “Implementing Immediate Heightened Screening and Vetting of Visa Applications” issued March 17, 2017.
In these cables, Tillerson has directed U.S. consulates and embassies to specifically identify population risks that warrant “increased scrutiny” and to implement tougher screening procedures for this particular group of people. Applicants who fall into one of the identifiable population groups will be subjected to a higher-level security screening. The cable does not identify whether embassies will be coordinating to provide a uniform standard for identifying populations who pose a security risk. This is a serious cause for concern, since U.S. embassies will likely vary in how they assess which groups pose a security risk. In addition, as part of these measures, the Secretary has ordered a mandatory social media check for all applicants who have ever visited or been present in any territory that is controlled by the Islamic State. Previously, social media screening was not a part of the regular screening process for U.S. visa applicants, however this screening process has always been a discretionary measure.
In addition, the cables provided instructions for the implementation of President Trump’s newly revised executive order on immigration which sought to temporarily bar the admission of foreign nationals from Syria, Libya, Sudan, Somalia, Iran, and Yemen, as well as Syrian refugees, including mandatory enhanced visa screening procedures. Several of these cables were quickly retracted by the Secretary of State after a federal judge from the state of Hawaii issued a Temporary Restraining Order blocking Trump’s embattled executive order from proceeding as planned. The Trump administration had envisioned strict new guidelines for vetting U.S. visa applicants, and this vision was reflected in Tillerson’s cables.
In this post, we discuss the latest immigration news beginning with the recent Congressional Approval of the Continuing Resolution Act that will allow funding to continue for the EB-5, Conrad 30, and special non-ministerial religious worker programs for fiscal year 2017. With the passage of this Continuing Resolution, these programs will remain afloat at least for the time being. On September 28, 2016 Congress averted a government shutdown by continuing funding for key programs with the passage of the Continuing Appropriations and Military Construction, Veterans Affairs, and Related Agencies Appropriations Act of 2017. This Act will extend the EB-5 Regional Center Program and EB-4 non-minister special immigrant visa program for religious workers until December 9, 2016. In terms of adjustment of status filing dates for employment-based preference categories, USCIS has announced that for the month of October, foreign nationals seeking to apply for employment-based adjustment of status (EB-1 to EB-4 preference categories) may do so by using the Dates for Filing Applications Chart of the October Visa Bulletin for 2016. EB-5 adjustment of status applicants must use the Final Action Dates chart of the October Visa Bulletin.
What does this mean?
The signing of the Continuing Resolution Act means that this year we will not be facing a government shutdown as in previous years. This is very good news given that the upcoming elections (both for the U.S. president and Congressmen and women) may have been a factor in Congress not being able to meet the deadline to continue government funding for these key programs. EB-5, Conrad, and non-ministerial religious worker programs will continue without interruptions since these programs are part of the CR.
What will happen after December 9, 2016?
On December 9th the government will be facing another deadline that will require Congress to continue funding these very important programs. If Congress does not meet the funding deadline for these programs through the passage of another Continuing Resolution or Omnibus package, the government could face another shutdown. This would take place after the elections, but before the new Congress is in session. If an Omnibus is passed, the possibility of reforms and/or changes to the EB-5, Conrad, or non-ministerial religious worker programs is worth noting. Recent controversies may lead to reforms in the EB-5 program although it is unlikely that major reforms and/or changes to the EB-5 program will pan out before the December 9th deadline.
For this blog we are answering 5 questions we have recently received through our social media platforms and our website. Please remember that every case is different and every immigration journey is unique. You should not compare your situation to anyone else’s. We hope that our answers will provide you with further guidance while you embark on your immigration journey. If you have any further questions, please call our office for a free legal consultation. We serve international clients and domestic clients in all 50 states. We thank you for your continued trust and interest in our law office.
Change of Status B-2 to F-1
Q: I need advice regarding my change of status. I am currently in the United States on a B-2 tourist visa. I have filed a change of status application to change my status to F-1 student. My B-2 duration of stay will expire today and my change of status application to F-1 student is still pending with USCIS. I informed my school that I will be postponing my classes and was notified that I need to file a new I-20 and provide some missing information. I have time to make adjustments to my application but I would like to know the steps to correct any missing information. I also wanted to know if I need to leave the United States immediately since my F-1 application is still pending. Please assist.
On January 21, 2016 the Department of Homeland Security confirmed that the Visa Waiver Program Improvement and Terrorist Travel Prevention Act would begin to be implemented. As a result of the recent terrorist attacks in San Bernardino county and abroad, Congress passed the Act in an effort to protect Americans from potential attacks and to secure the border. The Act increases travel restrictions for certain nationals seeking admission to the United States via the Visa Waiver Program.
Presently, the Visa Waiver Program allows nationals from 38 designated countries to travel and seek admission to the United States without a visa, for a maximum duration of 90 days. Visa Waiver Program travelers must have an approved Electronic System for Travel Authorization (ESTA) before travel.
As of January 21, nationals of visa waiver participating countries who have traveled to or been present in Iran, Iraq, Sudan, or Syria on or after March 1, 2011 will no longer be eligible to travel or seek admission to the United States under the visa waiver program. Nationals from visa waiver participating countries who maintain dual nationality with any of the aforementioned countries, are also excluded from traveling or seeking admission to the United States under the visa waiver program. Instead, these individuals must apply for a tourist visa at a United States Consulate or Embassy abroad before seeking admission to the United States. Part of this process will require a nonimmigrant interview to be conducted, before issuance of a tourist visa. DHS expects that this new legislation will not adversely impact visa waiver program travelers, since the Act does not ban these individuals from traveling to the United States, rather it removes the privilege of traveling under the visa waiver program, and requires these individuals to apply for a tourist visa.