Breaking news! Executive Order expected later today may affect travel for thousands of non-immigrant visa holders and immigrants

According to a draft Executive Order obtained by major media, including the New York Times and the Washington Post, President Trump seeks to suspend immigrant and non-immigrant entry into the U.S. by foreign nationals from countries referenced in the 2016 Consolidated Appropriations Act. That Act, passed in December 2015, included a provision that restricted the use of the visa waiver program by dual nationals of certain countries and by persons who had recently visited certain countries. According to CBP, the countries on the list (and those we expect to be affected by this Executive Order) include: 

• Iraq
• Syria
• Iran
• Sudan
• Libya
• Somalia; and,
• Yemen.

Accordingly, any foreign nationals from those countries, whether in the U.S. on temporary visas (including but not limited to F-1 students, E-1 and E-2 treaty traders/investors, E-3 Australians, H-1B professionals, J-1 exchange visitors, L-1 intercompany transferees, O-1 aliens of extraordinary ability, R-1 religious workers), or as permanent residents should be aware that if they travel outside the U.S., they risk not being re-admitted to the U.S. 

In addition to not granting re-entry into the U.S. for visa and green card holders from the countries listed above, the proposed Executive Order references the suspension of issuance of visas and other immigration benefits to nationals of those countries. It remains unclear how long delays will be for those seeking adjudication of a visa, admission to the U.S. or other benefit under the Immigration and Nationality Act ("INA"). 

Although it has been widely circulated in the press, the proposed Executive Order is not yet final. The wording could be changed and it is also possible that such an order ultimately may not be implemented. We share this information with you so can be prepared for the actions the new administration is considering taking imminently. We encourage you to visit our website for further updates and details. 

CBP procedures after nonimmigrant change of employer

In response to a query by the American Immigration Lawyers Association ("AILA"), Customs and Border Protection ("CBP") recently clarified an important issue regarding the nonimmigrant visa holders who seek to enter the U.S. in H-1B, L-1, O-1, P-1, and R-1 status with visas issued to them before they changed employers. For several years there has been a lack of clarity surrounding whether these nonimmigrants needed to obtain new visas abroad after changing employers, since their unexpired visas listed their first employer ("Employer A"), and the I-797 approval notices they would present to CBP along with their visa at the time of re-entry into the U.S. would list their new employer ("Employer B"). CBP confirmed to the CBP Office of Field Operations Liaison Committee that in most cases applicants do not need to first obtain a new visa annotated with Employer B's name on it -- the applicants may continue to use the visa annotated with Employer A's name, so long as the applicants present a valid I-797 approval notice associated with Employer B at the time of entry.

Although this is the first time CBP has offered this view as an agency, nonimmigrant visa holders should be aware there is still no direct written guidance from CBP on this matter. Despite the lack of official guidance, CBP's offering this view is a positive step perhaps towards a more codified approach that could provide more consistency for nonimmigrants who change employers after first obtaining their visa abroad. If you have questions about visa validity, changes of employer petitions, or CBP procedures, we encourage you to contact us at info@iandoli.com.

Electronic Visa Update System becomes mandatory at the end of this month for certain non-immigrant travels to the U.S.

The Department of Homeland Security ("DHS") published its final regulations on October 20, 2016 regarding the Electronic Visa Update System ("EVUS"), a new system for collecting biographic and other information from nonimmigrant aliens coming to the U.S. The nonimmigrant aliens subject to these regulations must periodically enroll in EVUS and obtain a notification of compliance before travel to the U.S., in addition to obtaining a valid visa. The only country / visas the program applies to initially is the People's Republic of China for 10 year B-1, B-2, and combo B1/B2 visas holders, which are general business and tourist travel visas. Before issuing a notification of compliance, the free EVUS system will ask applicants to provide details about their biographical and employment data, travel details, and their contact information in the U.S., as well as questions about public health concern, questions about arrests or convictions for certain crimes, and past history of visa or admission denial.  

The EVUS enrollment will become mandatory on November 29, 2016 and remains valid for two years. This new system requires compliance for both new visa applicants from China, and those already issued B-1, B-2, and combo B1/B2 visas. Travelers who are subject to EVUS requirements but do not have valid enrollments will not be able to obtain a boarding pass or enter through a land port of entry. Please refer to CBP's Frequently Asked Questions on the EVUS system for more details.

Tips for temporary visa holders for entering the U.S.

Each time foreign nationals re-enter the U.S. after temporary travel abroad, they should check their I-94 expiration date online at  https://i94.cbp.dhs.gov. Previously, U.S. Customs & Border Protection ("CBP") officers issued nonimmigrant air travelers a physical Form I-94 card (in the form of a small, white piece of paper) after conducting inspection.  Although physical I-94 cards are still completed at US land borders, CBP has been employing the electronic I-94 system for those traveling by air and sea since April 2013. Foreign nationals should always check their electronic I-94 records to ensure that their name, date of entry and expiration of stay has been properly entered into the U.S. Department of Homeland Security's database correctly to avoid any problems with future legal status in the U.S.  If a foreign national is unable to find her/his I-94 record online after entering their passport details correctly, or if the date displayed for period of admission is incorrect, the foreign national may return to the airport's international section and request to see a CBP officer at the Deferred Inspection office. Some CBP offices will entertain requests via email, while others only accept I-94 corrections in person with an appointment. 
 
With summer coming to a close and October approaching, many international students are returning to classes and soon many new H-1B visa holders will be arriving or looking to travel.  We remind F-1 students to always check with their school's international student office before undertaking any international travel, as they must have an up-to-date I-20, and if in their period of Optional Practical Training ("OPT"), proof they are maintaining their F-1 status by working (with an employment letter and/or paystubs) and not incurring more than the authorized number of days of unemployment. New H-1B arrivals should be reminded they can be admitted into the U.S. no earlier than 10 days before the start date listed on their I-797 approval notices. Those in other non-immigrant status (such as F-1, H-4, or L-1 or L-2), whose employers filed H-1B change of status petitions to take effect October 1 should remember to plan their next international trip carefully, ensuring that once they depart the U.S. they have made arrangements for obtaining a new H-1B visa abroad for re-entry into the U.S.

More changes to Visa Waiver Program are now in effect

Last month we informed you of changes to the Visa Waiver Program, including the prohibition of certain individuals from using Visa Waiver if they had traveled to Iran, Iraq, Syria or the Sudan in the past five years, or if they are dual nationals of those countries. On February 18, 2016, DHS announced that it was adding Libya, Somalia, and Yemen as three countries of concern, and limiting the Visa Waiver Program travel for certain individuals who have traveled to these countries. DHS did not make any additional changes regarding dual nationals of Libya, Somalia and Yemen and left open the possibility of adding more countries of concern in the future.

The Visa Waiver Program is administered through the Electronic System for Travel Authorization ("ESTA"), which has made changes to its online application in response to the changes in the Visa Waiver Program. Customs and Border Patrol ("CBP") announced on February 23, 2016 the revised online application contains additional questions to address the travel eligibility requirements discussed above. CBP also noted that an updated ESTA application with additional questions on travel to Libya, Somalia and Yemen will be released in the spring and will also address exceptions for diplomatic and military-related travel.

You can read last month's update on the Visa Waiver Program here.  If you have questions about the changes to the Visa Waiver Program, please contact the attorneys at Iandoli Desai & Cronin P.C. at info@iandoli.com.

Changes to Visa Waiver Program are now in effect

At the end of 2015 and in the wake of the recent terror attacks in Paris, Congress made significant changes to the Visa Waiver Program ("VWP"), which was created in 1986 and allows citizens of certain countries to enter the U.S. as a tourist without a visa for up to 90 days. In the U.S. this program is administered through an online portal called the Electronic System for Travel Authorization, commonly referred to as ESTA.  Previously eligible persons are now prohibited from using visa waiver if they have traveled to Iran, Iraq, Syria and Sudan since March 1, 2011, or if they are dual nationals of these countries.  There are limited exceptions (for example, travel to one of the countries on the list to carry out military service or official government business with a VWP participating country) which can be disclosed on the new ESTA application due to be released later this month.

On January 21, 2016, U.S. Customs and Border Patrol ("CBP") announced that affected individuals began receiving emails notifying them they are no longer eligible to use ESTA. Those foreign nationals will be required to seek a B-1 or B-2 visitor visa at a U.S. consulate or embassy abroad if they wish to travel to the U.S. in the future.

CBP published a new set of Frequently Asked Questions on its website concerning the changes to the VWP and ESTA.  If you have questions about the changes to the Visa Waiver Program, please contact the attorneys at Iandoli Desai & Cronin P.C. at info@iandoli.com.