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are indicating that the State Department are reinstating the US visas for individuals from the 7 countries which had been revoked, although there was no official confirmation of this at time of writing.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


Posted by Immigration Law Team »

Temporary public policy concerning foreign nationals affected by Executive Order

Posted by Immigration Law Team|Canada Immigration
Feb 17
2


In Brief

On January 27, 2017, the President of the United States of America signed an Executive Order prohibiting foreign nationals from Iran, Iraq, Libya, Somalia, Syria, Sudan, and Yemen from entering the United States of America for a period of at least 90 days.  Subsequently, on January 31, 2017, the Honourable Ahmed Hussein, Minister of Immigration, Refugees and Citizenship Canada (IRCC), announced a temporary public policy to assist foreign nationals  who are adversely affected by the Executive Order in applying for, or extending their, Canadian temporary resident status. This temporary public policy is set to expire at 11:59 p.m. EST on April 30, 2017.

Discussion

Foreign nationals from the aforementioned counties who are currently in Canada with valid temporary resident status (visitor, student, worker) and who hold valid temporary resident status in the United States of America may not be able to return to the United States of America during the prescribed period as a result of the Executive Order.  Further, those who were transiting through Canada on their way to the United States of America may not be able to enter the United States of America during the prescribed period as a result of the Executive Order.  Therefore, IRCC has implemented special measures to assist foreign nationals who are essentially stranded in Canada as a result of the Executive Order.

Citizens of the aforementioned countries require a Canadian temporary resident visa (TRV), or an electronic travel authorization (eTA) if they are a permanent resident of the United States of America, to enter Canada.  If a foreign national made arrangements to travel to the United States of America but is unable to do so as a result of the Executive Order, he / she may be able to apply for a Canadian temporary resident permit at a Canadian port-of-entry (e.g. international airport) to enter Canada if they do not have a Canadian TRV or eTA without having to pay the applicable processing fee.

If a foreign national is currently in Canada as a temporary resident and he / she  made arrangements to travel to the United States of America but is unable to do so as a result of the Executive Order, he / she may be able to apply for restoration and / or an extension of their Canadian temporary resident status without having to pay the restoration fee (if required) and applicable processing fee(s) and they may be able to apply for work authorization if they do not have sufficient means to support themselves during their temporary stay in Canada.

In order to be eligible for Canadian temporary resident status based on these public policy considerations, the foreign national must hold a visa or other document that is normally required to enter the United States of America and they must not be inadmissible to Canada other than for a failure to obtain a TRV or eTA.

Impact

IRCC will consider all applications subject to these public policy considerations on a case-by-case basis.  Therefore, all foreign nationals who are seeking to rely upon the public policy considerations should include a detailed explanation as to how they are affected by the Executive Order as part of their application and mark their application as “Urgent: Facilitation” for expedited processing.

For information about this temporary public policy, please contact PwC Law LLP.

 

 


Posted by Immigration Law Team »

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.


Posted by Immigration Law Team »

Atlantic Immigration Pilot opening in early March 2017

Posted by Immigration Law Team|Canada Immigration
Feb 17
2


In brief

Immigration, Refugees, and Citizenship Canada (IRCC) will be launching the Atlantic Immigration Pilot in early March 2017 in an effort to stimulate Atlantic Canada’s economic growth. This pilot program consists of three employer-driven categories which will allow skilled immigrants and international graduates to pursue permanent residency in one of the Atlantic Provinces: New Brunswick, Nova Scotia, Prince Edward Island, and Newfoundland and Labrador. Beginning in early March 2017, IRCC will accept a total of up to 2,000 applications.

Discussion

In recognition of Atlantic Canada’s aging population and shrinking labour force, the Canadian government developed the Atlantic Growth Strategy as a means of ensuring the region’s continued economic success. The Atlantic Immigration Pilot is a key initiative within this strategy as it facilitates permanent residency for skilled immigrants and international graduates. These individuals can apply for permanent residency through one of three employer-driven categories:

1. The Atlantic Intermediate-Skilled Program (AISP)

2. The Atlantic High-Skilled Program (AHSP), and

3. The Atlantic International Graduate Program (AIGP)

Each category has its own specific eligibility requirements with respect to the duration of the job offer, level of education and related work experience. However, generally, applicants must hold a full-time job offer from a designated employer in order to qualify. Additionally, applicants must meet certain language requirements and obtain a letter of endorsement from one of the Atlantic Provinces. International graduates must have graduated from a publicly-funded institution in one of the Atlantic Provinces within the previous 12 months in order to qualify.

Prior to issuing a qualifying job offer to an applicant, an employer must first become a designated employer by meeting certain requirements which include committing to support the newcomer and their family as they integrate into life in Atlantic Canada. These requirements vary amongst the Atlantic Provinces.

Impact

The innovative Atlantic Immigration Pilot is expected to stimulate economic growth in Atlantic Canada by making it easier for employers in the region to attract and retain skilled immigrants. In recognition of the pressing labour needs of Atlantic Canada, employers will not need to obtain a Labour Market Impact Assessment (LMIA), which is often an onerous process. Employers, however, will be required to support the newcomer in his or her long-term integration, including connecting the newcomer and their accompanying family member(s) with a settlement organization to develop an individualized settlement plan. The Atlantic Provinces are now accepting applications to become a designated employer under the Atlantic Immigration Pilot. Therefore, any employers who are interested in participating in the Atlantic Immigration Pilot should apply to become a designated employer immediately due to the limited quota under this Pilot.

For information on the Atlantic Immigration Pilot, please contact PwC Law LLP.


Posted by Immigration Law Team »

Special Authorization Period extended

Posted by Immigration Law Team|Canada Immigration
Feb 17
2


In Brief

On January 27, 2017, Immigration, Refugees and Citizenship Canada (IRCC) announced an extension of the Special Authorization program for dual-Canadian citizens, granting them additional time to acquire a valid Canadian passport.

Discussion

Following consultations with several stakeholders including major international airlines, IRCC has extended the Special Authorization program for an undefined period. This program, designed to minimize travel disruptions arising from IRCC’s new Electronic Travel Authorization (eTA) requirement, allows dual-Canadian citizens who do not hold a valid Canadian travel document a short window to board their flight into Canada. Accordingly, dual-Canadian citizens with a passport from a visa-exempt nation and arranged travel plans to enter Canada within 10 days of their application may apply for a Special Authorization which, if granted, is valid for 4 days from the date of travel.

Impact

Due to Canada’s mobility rights, Canadian citizens are ineligible to apply for an eTA. Accordingly, IRCC’s announcement allows dual-Canadian citizens who hold a valid passport from a visa exempt nation to continue to benefit from the Special Authorization program until they can acquire a valid Canadian passport.

For information on obtaining a Special Authorization, please contact PwC Law LLP.


Posted by Immigration Law Team »

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.


Posted by Immigration Law Team »

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.


Posted by Immigration Law Team »

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.


Posted by Immigration Law Team »