United States: Update on Executive Order – Travel ban to the US temporarily lifted

Posted by Immigration Law Team|US Immigration
Feb 17
6


A Judge of the United States District Court, Seattle, Washington has issued a Temporary Restraining Order (TRO) against parts of the January 27, 2017 Executive Order which temporarily stopped the admission of individuals from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.  In relevant part, the Judge has ordered a national TRO against the Executive Order which will allow the admission of individuals from the restricted countries as well as refugees in possession of a US visa.

Moreover, media reports are indicating that the State Department are reinstating the US visas for individuals from the 7 countries which had been revoked, although there was no official confirmation of this at time of writing.

The situation continues to be very fluid, with the White House indicating that it will appeal the decision.  Caution is still advised to those from one of the 7 affected countries, if in the US, that they not depart.

For further details on the Executive Order, or on any other immigration matters, please contact a member of our team.


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United States: Update on Executive Order: Clarification as to how dual nationals from restricted travel countries will be handled

Posted by Immigration Law Team|US Immigration
Feb 17
2


US Customs and Border Protection (CBP) has recently issued an FAQ addressing the January 27, 2017 Executive Order which temporarily stopped the admission of individuals from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.  In relevant part, CBP has stated that dual nationals will be processed for entry according to the travel document they present to the CBP officer.  Thus, dual nationals of the seven designated countries may still be permitted entry to the United States so long as they present a passport from a country that is not on the banned list.  However, do note that there have been isolated reports of dual nationals travelling on their passport from a non-banned country who have been detained, so it is best to be aware of this possibility and continue exercising caution.

CBP has also indicated that US permanent residents (green card holders) from the listed countries will be permitted entry (granted a waiver) into the United States, absent any indication that they might pose a serious threat to public safety and welfare.  What constitutes a threat to public safety and welfare is not clear however foreign nationals from the banned countries who are U.S. legal permanent residents can expect further questioning at the border.

For further details on the Executive Order, or any other immigration matters, please contact a member of our team.


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United States: DACA Amnesty Program cancellation

Posted by Immigration Law Team|US Immigration
Feb 17
1


In brief

A leaked draft executive order reveals that Donald Trump may sign an executive order ending the DACA program instituted under President Obama.

Background

Deferred Action for Childhood Arrivals (DACA) is an amnesty program created by executive order under President Obama which allows foreign-born nationals who entered the United States when they were younger than 16 years old, have no felony convictions, and who pursue education, to be temporarily protected from deportation and allowed to work in the United States.

Impact

A leaked draft executive order reflects that Donald Trump might end this amnesty program for childhood arrivals.  The following information is based on our analysis of the leaked draft.  The final order, if signed, may differ.

By the terms of this draft executive order, work permits already issued will remain valid only for their current respective durations.  On expiry, work authorization for DACA beneficiaries will not be renewed and they will no longer be protected from deportation.

If these orders are officially executed, our office will provide detailed analysis on their impact.

For further details regarding the draft executive order ending DACA, or any other immigration matters, please contact a member of our team.


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United States: New limits on employment-based visa programs

Posted by Immigration Law Team|US Immigration
Feb 17
1


In brief

A leaked draft of an executive order reveals that Donald Trump may eliminate the 24-month STEM OPT extension and work authorization for H-4 dependents.  This executive order is further expected to mandate site-visits by DHS for L-1 visa holders and have additional consequences for employment-based visa holders.

Discussion

The following information is based on our analysis of the leaked draft executive order.  The final order could differ.

As of May 26, 2015, H-4 dependent spouses of H-1B nonimmigrants with an approved Form I-140 and a pending Form I-485 of more than 180 days, were able to petition for EAD cards.

STEM OPT is a program whereby certain F-1 students who receive science, technology, engineering, and mathematics (STEM) degrees may apply for a 24-month extension of their occupational practical training.

The leaked early draft executive order is unclear in many of its mandates but what is reflected is that Donald Trump may review and revoke the 24-month STEM OPT extension, H-4 EAD, and parole based entry into the United States.

The draft executive order also requires DHS to perform “site visits” at places of employment for L-1 visa holders within 180 days of the issuance of this executive order.  Within 2 years, this site-visit program will be expanded to cover all employment-based visa programs.

Impact

Certain provisions of the draft executive order are less clear in their real-world consequences.  These provisions include the call for:

– The alteration of the H-1B program to be “more efficient and ensure that beneficiaries of the program are the best and the brightest.” This seems to suggest that the H-1B visa program will move towards a merit based system rather than visa allocation by lottery.

– Increased monitoring of foreign students and reforms to practical training programs for foreign students as well as the J-1 Summer Work Travel program in order to favor United States students in the workforce.

– New regulations to clarify that people on business or tourist visas may not perform skilled or unskilled labor.

– An investigation into “the extent of any injury to US workers” caused by the employment of foreign workers, regular reports on the number of foreigners working in the United States, and assessments of benefit fraud for all immigration benefits categories.

For further details regarding the draft executive order, or any other immigration matters, please contact a member of our team.


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United States: Executive Order Protecting the Nation from Foreign Terrorist Entry into the United States

Posted by Immigration Law Team|US Immigration
Jan 17
29


In Brief

On January 27, 2017, President Trump signed an Executive Order entitled “Protecting the Nation from Foreign Terrorist Entry Into the United States.” This Order has an impact on US corporate immigration in 3 main ways. Firstly, it suspends the travel of nonimmigrants and immigrants from Iran, Sudan, Syria, Libya, Somalia, Yemen, and Iraq into the US for a period of at least 90 days. Secondly, it requests the implementation of uniform screening standards for all immigration programs, including suspending the Visa Interview Waiver Program. Thirdly, it requests the expedited completion of the biometric entry-exit tracking system.

Discussion

Rationale for the Order

The Executive Order was issued out of concern that the visa issuance process is not sufficiently robust to catch those who may be a security threat to Americans. The President has requested that the Secretary of Homeland Security immediately conduct a review to determine what information countries should provide to the US so that US government officials can make a proper determination as to whether or not a visa applicant, or applicant for admission to the U.S., poses a threat to national security. The travel suspension is placed to reduce the investigative burdens during the review period from both a resourcing perspective, as well as from a risk perspective. The Executive Order aims to ensure proper security measures are in place before more immigrants and nonimmigrants from certain countries enter the US.

Suspension of entry into the US

The Order specifically states that the entry into the US of people “from” certain countries is detrimental to the interests of the US and suspends the entry into the US of such persons, whether as immigrants or nonimmigrants, for 90 days from the date of the Order. There is an exception for those who are traveling on certain official business, utilizing diplomatic, NATO, UN, or International Organizations visas.

Since the Order uses the term “from,” it is unclear exactly who is impacted by the Order and as of this publication, varying interpretations regarding the precise impact on dual citizens, as well as US green card holders, have been released. Until further clarification is provided, it is prudent for a broad interpretation of the term “from” to be utilized. As such, those who are citizens, nationals, dual nationals, and/or born in those seven countries should consider themselves impacted by the Order. This would include, for example, a person who is both a citizen of Iran and another country, even if utilizing the other country passport for entry into the US, as well as a person who was born in Iran (who has not held an Iranian passport for several years) who is seeking entry into the US on another country’s passport.

The Order specifically impacts “immigrants and nonimmigrants.” As such, anyone from one of the seven countries who holds nonimmigrant (such as B-1/B-2, H-1B, L-1, and TN) status or immigrant (permanent resident / green card) status is potentially affected by the Order. The Order impacts those who are currently outside of the US who may be banned from entering the US, as well as those who are currently in the US and were seeking to travel outside the US.

The Order does allow for the Secretaries of State and Homeland Security to issue visas or other immigration benefits to those from the seven countries on a case-by-case basis. It will be important to see whether certain populations, such as those with dual nationality who are green card holders, will be exempted from the ban. Over the next few days, more clarity will likely be provided by the Department of State and Department of Homeland Security as to how those departments will be implementing the Executive Order.

Implementation of uniform screening standards

The Order further discusses the implementation of uniform screening standards, across governmental agencies including the FBI, which will be able to better identify possible fraud within the immigration context. This could have various impacts on US corporate immigration including changes in USCIS forms and an increase in in-person interviews by both USCIS and the Department of State. The Order also requests the Secretary of State to immediately suspend the Visa Interview Waiver Program, thus requiring that all nonimmigrant visa applicants undergo in-person interviews. This impacts those planning to utilize the “drop box” method of visa application, available for certain nonimmigrant applicants at certain US Consular Posts. For example, certain Indian nationals who were previously able to renew their H-1B visas without an interview, will likely now have to attend an in-person interview at a US Consular Post.

Immigrant and nonimmigrant visa applicants, as a result of the Order, should be prepared for increased visa adjudication wait times and should plan their travel accordingly.

Expedited completion of the biometric entry-exit tracking system

The Order affects “all travelers” to the United States since it requests the completion and implementation of a biometric entry-exit tracking system. Although the Order does not define “all travelers,” it is possible that all nonimmigrants and immigrants may be required to undergo additional security screening, such as fingerprint scanning, when entering the US. The Department of Homeland Security is charged with completing and implementing this system.

Impact and Recommendations

Companies are advised to review their current employee population, specifically those with US immigrant or non-immigrant status, and those with upcoming travel plans.

Until further clarification is provided, it is recommended that those who are from any of the seven countries who are currently in the US in either a nonimmigrant or immigrant status NOT depart the US since they may not be able to re-enter the US for 90 days or longer. For those who may have an upcoming nonimmigrant status expiration (such as an expiring I-94), it is recommended that they discuss their particular situation with an immigration attorney. Also, for those who are currently outside of the US from one of those seven countries who were seeking to enter the US in a nonimmigrant or immigrant status, they should be prepared to make alternate plans should they be denied entry into the US.

It is important to note that the situation is in flux and may change at any time, given recent court decisions to stay parts of the Order as well as messages delivered to various governments worldwide.  We will be certain to provide updates, clarification, and guidance as this matter develops. Do note, however, that this practice alert is not legal advice. Attorneys and clients should discuss and make decisions based on their individual circumstances.

For further details regarding the Executive Order, or any other immigration matters, please contact a member of our team.


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United States: Travel warning for Nationals of certain countries

Posted by Immigration Law Team|US Immigration
Jan 17
27


In brief

Donald Trump is expected to sign an executive order that would suspend the immigrant and nonimmigrant entry of nationals from certain designated countries, which may include Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen.  The travel ban is anticipated to last 30 days from the date of the order, but may be extended.

Impact

President Trump’s administration has drafted an executive order relating to visa issuance, screening procedures and refugees.  Among other provisions, the draft order would suspend the immigrant and nonimmigrant entry of nationals from certain designated countries.

If the draft order is implemented without change, the “designated countries” would include Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.  As a result, nationals of these designated countries would be ineligible to enter the U.S., either as non-immigrants (B-1, H-1B, L-1A, etc.) or U.S. Permanent Residents, for a period of at least 30 days.

To complicate matters, the term “national” is not specifically defined in the draft order.  In light of the uncertainty, the executive order may apply to any foreign national who is a citizen, national, passport holder, or was born in a designated country, although there may be more clarity on this if the executive order is in fact signed.

It is important to note that the draft order has not been finalized, and that changes may occur from the draft to the finalized version.  However, as the executive order may be signed at any point this week by President Trump, and would become effective immediately upon signing, it is critical for nationals of the countries listed above to be aware of the potential travel restrictions into the U.S.

Recommendations

Nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen who are physically present in the U.S. are advised not to travel out of the country at this time, as they may be barred from re-entry for a period of 30 days or more.  Further, nationals of the above mentioned countries who are currently outside the U.S., but who have immigrant or non-immigrant status in the U.S., are advised to return to the U.S. as soon as possible, before an executive order on the matter is signed.

For further details regarding the draft executive order, or any other immigration matters, please contact a member of our team.


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United States: H-1B Reform Proposal for Dependent and Willful Violator Employers

Posted by Immigration Law Team|US Immigration
Jan 17
23


In brief

Congressman Darrell Issa of California reintroduced H-1B legislation proposing to reform the requirements related to attestation exemptions for H-1B dependent and willful violator employers.  Specifically, the legislation aims to increase salary requirements and eliminate master’s degree exemptions, which currently allow H-1B dependent and willful violator employers to avoid Department of Labor attestation requirements.

Background

Currently, H-1B dependent and willful violator employers are exempt from Department of Labor attestation requirements if the beneficiary has a master’s degree or higher, or will earn a base salary of at least $60,000.  H-1B-dependent and willful violator employers which employ only exempt H-1B workers are relieved from the additional obligations with which they would otherwise be required to comply, such as non-displacement, recruitment, and hiring of US workers.

Impact

In the proposed legislation, Congress seeks to make it more difficult for H-1B dependent and willful violator employers to qualify for this exemption.  The legislation proposes to raise the base salary amount to $100,000, an increase of $40,000 from the current exemption amount.  Additionally, the legislation proposes to eliminate the master’s degree exemption, meaning that H-1B dependent and willful violator employers could only qualify for the exemption by paying the beneficiary a base salary of at least $100,000.

The proposed legislation was reintroduced just days before Donald Trump was inaugurated as the next president of the United States.  During his campaign, Trump stated that he would seek to reform the H-1B category, in part to make it more difficult for U.S. employers to employ foreign nationals over qualified U.S. workers.  Although the proposed legislation has not been passed by either branch of Congress, the transition to a Trump administration may result in the passing of this proposed legislation sooner rather than later.

For further details regarding the proposed reform to the H-1B category, or any other immigration matters, please contact a member of our team.


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United States: USCIS Publishes New Rule for International Entrepreneurs

Posted by Immigration Law Team|US Immigration
Jan 17
23


In brief

On January 17, 2017, United States Citizenship and Immigration Services (USCIS) published a new rule to welcome international entrepreneurs to the U.S.  This rule will allow certain international entrepreneurs to be considered for parole (i.e. temporary permission to enter the U.S.) in order to start and operate their businesses.

Discussion

Under this proposed rule, the Department of Homeland Security (DHS) will be able to parole, on a case-by-case basis, eligible entrepreneurs of startup enterprises:

1. Who have a significant ownership interest in the startup (at least 10 percent) and have an active and central role to its operations

2. Whose startup was formed in the United States within the past five years, and

3. Whose startup has substantial and demonstrated potential for rapid business growth and job creation, as evidenced by:

– Receiving significant investment of capital (at least $250,000) from certain qualified U.S. investors with established records of successful investments

– Receiving significant awards or grants (at least $100,000) from certain federal, state or local government entities, or

– Partially satisfying one or both of the above criteria in addition to other reliable and compelling evidence of the startup entity’s substantial potential for rapid growth and job creation.

Impact

Individuals who qualify may be paroled into the U.S., which is discretionary permission to enter the U.S. granted by U.S. Customs and Border Protection.  Further, the entrepreneur’s dependents, including their spouse and unmarried children under 21, may be paroled into the U.S. as well. It is important to note that because parole is not considered an admission to the U.S., parolees are ineligible to adjust or change their status under many immigrant or non-immigrant visa classifications.

The rule is scheduled to take effect on July 17, 2017.  Nevertheless, there is uncertainty how long this new rule might remain in effect under the Trump administration.  President Trump may instruct his administration to rescind the regulation.  The Trump administration has not stated its intent with respect to this specific regulation.

For further details regarding the new rule for international entrepreneurs or any other immigration matters, please contact a member of our team.


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