Termination of DACA

On September 5, 2017, Attorney General Jefferson Beauregard Sessions III announced the President's plan to terminate the Deferred Action for Childhood Arrivals ("DACA") program. Originally introduced in 2012, DACA provided relief from deportation and the ability to apply for work authorization for as many as 800,000 individuals who arrived in the U.S. before 2007, were children (under age 16) at the time they arrived, were 30 years or younger when the policy was enacted in 2012, and did not have criminal records. The President's order terminating DACA stated that, effective immediately, USCIS would no longer accept initial requests for DACA and would no longer approve advance parole (travel authorization) requests associated with DACA. The President directed USCIS to only accept DACA renewal requests and EAD requests until October 5, 2017, and only for individuals whose DACA benefits expire on or before March 5, 2018.

Accordingly, DACA beneficiaries with upcoming expirations have been scrambling to file their extension requests, a process that has been particularly onerous for DACA recipients in Florida and Texas impacted by Hurricanes Harvey and Irma. Although the Dream Act legislation has been introduced to protect these DACA recipients on a more permanent basis, to date Congress has not brought these bills up for debate or vote. We will continue to bring updates on DACA and any Dream Act legislation in our newsletters.

Trump Travel Ban 3.0

On the eve of the expiration of the second version of the Trump Administration's travel ban, the White House introduced an updated travel ban on September 24, 2017, which added certain foreign nationals from Chad, North Korea, and Venezuela to the list of countries singled out by the Administration as a threat to the security and interests of the U.S.  The country impacts of the latest travel ban are:

• Chad - suspends entry of immigrants and temporary visitors on B-1/B-2 visas;
• Iran - suspends entry of immigrants and all non-immigrants, except F, M, and J visas, though they will be subject to enhanced screening;
• Libya - suspends entry of all immigrants and temporary visitors on B-1/B-2 visas;
• North Korea - suspends entry of all immigrants and nonimmigrants;
• Somalia - suspends the entry of immigrants, and requires enhanced screening of all non-immigrants;
• Syria - suspends the entry of all immigrants and non-immigrants;
• Venezuela - suspends the entry of certain government officials and their family members on B-1/B-2 visas; and.
• Yemen - suspends the entry of immigrants and temporary visitors on B-1/B-2 visas.

Travel restrictions for nationals of Sudan (who were impacted by the two earlier versions of the travel ban) have been lifted, and nationals of Iraq will not be subject to an outright ban but will be subject to additional screening measures.

The effective date of Travel Ban 3.0 is varied. The new restrictions are effective immediately for nationals of Iran, Libya, Somalia, Syria and Yemen who do not have a bona-fide relationship with a U.S. person or entity. On October 18, 2017, the new restrictions will become effective for all persons subject to the proclamation, including the nationals of the aforementioned countries who do have bona-fide relationships with U.S. persons or entities, as well as the nationals of Chad, North Korea, and Venezuela as described above. There are also a number of notable exceptions to this latest travel ban, including:

• Lawful permanent residents;
• Foreign nationals admitted to the U.S. or paroled into the U.S. on or after the applicable effective dates, or in possession of a document other than a visa (such as a boarding foil, transportation letter, or advance parole document) valid on the applicable date or issued thereafter;
• Dual nationals traveling on a passport issued by a non-designated country;
• Foreign nationals traveling on a variety of diplomatic visas; and,
• Foreign nationals granted asylum in the U.S., refugees admitted to the U.S., or individuals who have been granted withholding of removal, advance parole, or protection under the Convention Against Torture.

Waivers may be available if foreign nationals can demonstrate to consular officers or to Customs and Border Protection officials that denying entry would cause the foreign national undue hardship, entry would not pose a threat to national security or public safety and entry would be in the national interest.  The exact form of application for such a waiver is still to be determined. We will continue to bring you updates on this continuing travel ban saga, including federal litigation seeking to overturn this latest proclamation.

Update on the President's immigration-related Executive Orders

On April 18, 2017 President Trump signed his latest Executive Order "Buy American and Hire American." While this recent order sent shockwaves through the business immigration community, the order itself will not have an immediate impact.  The administration made clear their desire to reform the H-1B program but the Executive Order notes it will focus on reviewing current policies in order to identify "fraud and abuse" and then at a later date propose actual regulatory reforms so that H-1B visas are awarded to the most skilled or highest-paid applicants. 

In his previous Executive Order titled, "Enhancing Public Safety in the Interior of the United States," signed on January 25, 2017, the President threatened that "sanctuary jurisdictions", including "sanctuary cities" who refuse to comply with immigration enforcement measures, will not be eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the U.S. Attorney General or Secretary of Homeland Security. But on April 25, 2017 Trump's administration was handed yet another legal blow to their issuance arguably unconstitutional executive orders when the U.S. District Court for the Northern District of California issued a nationwide injunction against §9(a) of the order, halting enforcement.  In his Order, Judge William H. Orrick determined that the localities were likely to succeed on the merits of their challenge that the proposed Executive Order violated the U.S. Constitution - largely based on the order violating the Tenth Amendment which expresses the principle of federalism and states' rights: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."  It remains to be seen if President Trump will revise and reissue his order similar to his Muslim & Refugee Ban or fight this one out in court. 

We will post any news on these Executive Orders and the ensuing litigation on our website at http://www.iandoli.com/newsandupdates.

Temporary Restraining Orders and a Preliminary Injunction issued, halting Executive Order on Travel Ban

Several U.S. District courts issued temporary restraining orders related to the revised Travel Ban last month. Further, the U.S. District Court of the District of Hawaii in its Order found there was "unrebutted evidence of religious animus" and a "dearth of information indicating a national security purpose", and concluded that the plaintiffs were likely to succeed on the merits of their claim that the travel ban violated the Establishment Clause of the U.S. Constitution. The Court further held that no "constitutionally significant" changes were made to this rewritten order and that it therefore suffered from all the same failings of the first executive order (withdrawn by the government and replaced by the rewritten order). Many of these same findings were reiterated when the District Court issued its Preliminary Injunction on March 29, 2017. In response to the government's arguments that only the four-corners of the Executive Order should be reviewed and statements made by the President during the campaign and while in office leading up to the ban should be ignored, the Judge's Order states: "The Court will not crawl into a corner, pull the shutters closed, and pretend it has not seen what it has."  The U.S. District Court's Preliminary Injunction is binding on all federal agencies, including the Department of Homeland Security and the Department of State. The Executive Branch indicated it will again appeal to the Ninth Circuit Court of Appeals. We will bring you further updates as the travel ban litigation progresses.

Trump Administration to implement heightened screening of visa applicants

While the Executive Order authorizing the travel ban is tied up in litigation, the Trump administration has ordered all American embassies and consulates to increase the scrutiny of all visa applicants. Released as a series of cables within the Department of State, this new scrutiny could include detailed questions on applicants' backgrounds and mandatory checks of applicants' social media history if the applicants have ever been in territory controlled by Daesh (the Islamic State). Additional scrutiny could include review of all phone numbers, email addresses, and social media handles used by the visa applicant over the past five years. Another new review criterion, that of the visa applicant's work history for the prior fifteen years, has been held up pending approval of the Office of Management and Budget. 

This heightened scrutiny is likely to increase the typical waiting times for visa processing, which was acknowledged by Secretary of State Rex Tillerson who said that this extra scrutiny would cause "backlogs to rise." Accordingly, employers and visa applicants should be aware of the risk for delays for visa processing abroad over the coming months.

Revised Executive Order on Travel Ban released

On March 6, 2017, the new administration re-issued an Executive Order that halts all refugee admissions for at least 120 days and bans entry into the United States for at least 90 days for persons from six Muslim-majority countries: Iran, Libya, Somalia, Sudan, Syria, and Yemen.  Iraq, which had been included in the prior Executive Order, is not included in this updated version. The notable points of this latest Executive Order ("EO") include:

• The EO expressly states it revokes Executive Order 13769, originally issued on January 27, 2017. Executive Order 13769 was the subject of dozens of lawsuits and temporary restraining orders across the country: most notably, in Washington State and the Ninth Circuit Court of Appeals, which affirmed an injunction blocking key parts of that prior Order.
• Effective March 16, 2017, nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen are prevented from entering the United States for a period of 90 days, does not apply to the following:

  • lawful permanent residents ("green card holders") from those six countries;

  • persons from one of those six countries with a valid visa obtained on or before January 27, 2017;

  • A foreign national with a valid travel document other than a visa (for example, advance parole), valid as of the date of the EO or issued thereafter;

  • dual nationals of those six countries when traveling on a passport of a non-designated country (for example, a dual Iranian Canadian citizen seeking to enter the U.S. on a Canadian passport);

  • persons traveling on diplomatic visas, NATO, or U.N.-specific visas; and,

  • foreign nationals granted asylum, refugees already admitted to the U.S., granted withholding of removal, advance parole, or protection under the Convention Against Torture.
     

• The EO allows for consular officers or the Commissioner of U.S. Customs and Border Protection ("CBP"), in their discretion, to issue a visa or permit entry, on a case-by-case basis, for individuals affected by this order if the foreign national demonstrates that denying entry would cause undue hardship, his/her entry would not pose a threat to national security, and would be in the national interest.  The specifics of how to seek or request this waiver is unclear from the text of the EO, but the EO lists several examples of circumstances, including returning students or temporary workers outside the U.S. on the effective date of the order, foreign nationals seeking to visit or reside with a spouse, child, or parent who is a U.S. citizen, lawful permanent resident, or non-immigrant, persons needing urgent medical care, landed Canadian immigrants applying for U.S. visas in Canada, or U.S. government-sponsored exchange visitors.
• Additional countries may be added for restrictions or limitations based on input from the Secretary of State, the Attorney General, or the Secretary of Homeland Security.
• As of the effective date of the EO, all refugee admissions under the U.S. Refugee Admissions Program are suspended for at least 120 days, with admissions resuming only after the Secretary of State, Secretary of Homeland Security and the Director of National Intelligence have determined that additional procedures for screening refugees described in the order are adequate.
• Reduces the number of refugees in Fiscal Year 2017 to 50,000 (the Obama Administration had set the commitment figure at 110,000), with exceptions for admitting refugees to conform with international agreements or other limited circumstances.
• Directs the Secretary of State to examine existing law to determine the extent to which state and local governments "may have greater involvement" in determining the placement or resettlement of refugees in their jurisdiction.
• Suspends Visa Interview Waiver Program, requiring individuals from all countries who seek to renew their nonimmigrant visas to undergo in-person interviews.

In addition to posting this latest Executive Order, major media reports the Trump administration has also circulated a Fact Sheet and Q&A for implementation of the EO. We will bring further updates related to this new Executive Order as they become available.

The latest on the President's Executive Order impacting non-immigrants, immigrants and U.S. businesses

On Friday January 27, 2017, President Donald J. Trump signed an Executive Order that contained sweeping changes to processing arrivals at our nation's airports and land borders of non-immigrants with a variety of work and travel visas, immigrants, lawful permanent residents, and refugees. Although styled as imposing temporary measures, it is having a dramatic impact on thousands of individuals in the U.S. and abroad, and contains language that suggests long-lasting changes to the visa application process abroad and the adjudication of immigration-related applications within the U.S. This news release summarizes the Executive Order, the litigation that has followed, and the Order's effect on individuals and employers in the coming weeks.

What is in the Executive Order?

• Major items in the Executive Order include a temporary suspension of visa issuance abroad and entry into the U.S. for individuals from 7 countries, a temporary suspension of admission of all refugees, an indefinite suspension of refugees from Syria, and suspension of the Visa Interview Waiver Program for all non-immigrant visa renewals (by citizens of all countries).
• The Order covers "immigrants and non-immigrants" and includes anyone with a valid visa (including professional work visas, student visas, and tourist visas) and returning lawful permanent residents. The Department of Homeland Security ("DHS") later released a statement indicating the entry of lawful permanent residents would be considered in "the national interest" but it did not assure their entry. Rather, the statement included the caveat "absent derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status will be a dispositive factor in our case-by-case determinations."
• Section 5 of Order directs the Secretary of State to suspend the U.S. Refugee Admissions Program ("USRAP") for 120 days, and specifically states that the entry of nationals of Syria as refugees is suspended indefinitely, with exceptions for 1) if admitting the individual would be in the national interest; 2) if the person seeking admission is from a religious minority facing religious persecution; 3) to conform to international agreement; or 4) if the person is in transit and there would be undue hardship if he/she were denied admission to the U.S.
• Section 8 of the Order requires the Secretary of State to immediately suspend the Visa Interview Waiver Program ("VIWP"), a worldwide program which allows U.S. consuls to waive in-person visa interviews for nationals of any country who have been recently vetted for security clearances and who seek a visa renewal.

What is the status of litigation regarding the Executive Order?

• Attorneys with the American Immigration Lawyers Association ("AILA") and the American Civil Liberties Union ("ACLU") have filed lawsuits on behalf of affected individuals in federal district courts in New York, Massachusetts, Virginia, and Washington state. Judges in those federal courts have issued Temporary Restraining Orders ("TROs") based on plaintiffs' likelihood of success on Constitutional grounds.
• New York's TRO provides a nationwide stay of removal preventing deportation for individuals with valid visas and approved refugee applications affected by the Executive Order.
• Massachusetts' TRO has barred federal officials from detaining or removing anyone affected by the Executive Order for 7 days (until February 4), and further instructs Customs and Border Protection ("CBP") to notify international airlines that passengers flying into Boston's Logan Airport will not be subject to the Executive Order. Airlines had been refusing to board affected individuals.
• Virginia's TRO specifically orders federal officials to allow lawyers access to "all legal permanent residents detained in Dulles International Airport."
• Washington state's TRO bars federal officials from deporting two unnamed individuals in the U.S.
• Judges in the federal district courts in these jurisdictions will hold hearings this week on these pending suits to determine whether to extend, modify or cancel the TROs. The outcomes are difficult to predict. If the judges are persuaded on the merits of the case, it is possible the TROs may be converted into preliminary injunctions while awaiting further judicial review, effectively stopping the Executive Order or parts of it from taking effect until the matter can be argued and decided by the court. Alternatively, attorneys for the Trump Administration may succeed in their argument that the President's broad discretion on matters of national security permits the actions contained in the Order. If a judge permits the TROs to expire without issuing a preliminary injunction, the Executive Order would be in effect until either a successful appeal by the immigrants to a higher court or possibly an ultimate decision by the Supreme Court.
• In addition, Massachusetts Attorney General Maura Healey announced she is filing a lawsuit today to challenge the Executive Order as unconstitutional.

What are the consequences of this Executive Order on individuals and employers?

• Foreign nationals from one of the seven countries affected by this Executive Order -- either lawful permanent residents or holders of valid visas -- should not travel. There is no guarantee these individuals will be permitted back into the U.S. after travel abroad. This could have disastrous consequences for individuals, their families, and their employers, as they risk being unable to re-enter the U.S. for at least 90 days, if not longer based on how quickly they might be able to obtain a new visa (if needed). 
• For those foreign nationals affected by this Executive Order who are currently outside the U.S., they should consider returning to the U.S. immediately via a direct flight into Boston's Logan Airport if possible before February 4 when the TRO expires.
• If foreign nationals are asked to relinquish U.S. permanent residence, the returning lawful permanent residents should be aware they have a right to request a hearing before an immigration judge. Green card holders should not sign a Form I-407 to relinquish their residence if they desire a hearing.
• Credible reports indicate that applications by nationals from these seven countries for immigration benefits with U.S. Citizenship and Immigration Services ("USCIS") such as Adjustment of Status, Petitions for Non-Immigrant Workers, Applications for Employment Authorization, etc. have been suspended. Currently, issuance of visas abroad for these foreign nationals is also suspended, and sources indicate USCIS will accept but not complete final adjudication until further notice of applications filed by or on behalf of foreign nationals from those seven countries.
• Employers should be aware of both the risk for delays with adjudication of applications and the risk travel presents for any employee needing to apply for a visa abroad. The suspension of Visa Interview Waiver Program will affect students and professional visa holders across the globe, as appointments for visa renewals in all countries will likely experience increased wait times since all visas applicants are now required to attend an in-person visa interview. There is also a greater likelihood of administrative processing (security) delays, given the additional information the Department of State will be seeking as contemplated by the Executive Order.
• In addition, the broad language in Section 3 of the  Order states that the Secretary of DHS and the Secretary of State shall conduct a review to determine the information needed from any country to adjudicate any visa, admission or other benefit under the Immigration and Nationality Act ("INA"), including adjudications. This language suggests a full revisiting of the current processing procedures, which may also result in delays.

We will bring you further updates on this and other immigration-related news in our February newsletter next week. 

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. 

A new presidential administration - how much change to expect & how soon?

Given the amount of the rhetoric concerning immigrants that occurred during the 2016 presidential campaign, many members of the immigrant community are nervous about what to expect next. In addition to the foreign nationals living and working in the U.S. feeling uncertain, the companies who employ non-immigrant, professional workers in a variety of employment-based visa categories are also unsure about what the change in presidential administrations will mean for their workforce. 

The U.S. Constitution does not permit a President, acting alone, to repeal or amend laws, statutes, or regulations. A President can, however, undertake actions to reverse some of the policies of his predecessor, particularly if those actions exist only as Executive Actions and are not codified in statutes or agency regulations. The most common types of executive actions include 1) executive orders, 2) discretionary agency directives and guidance, and 3) agency rules. Employers and their foreign national employees should take some comfort in the fact that that agency rules (for example, rules published by the Department of Homeland Security in effect by the time the president-elect takes office) require a significant amount of time to revise or revoke. Agency rules must undergo publication, notice and comment periods before a final rule can take effect, pursuant to the Administrative Procedures Act. Any proposed changes to these rules will be well publicized and the public will have the opportunity to provide input on any changes sought by a new administration, as well as prepare for any ultimate changes to current regulations. On the other hand, discretionary agency directives and guidance do not have the force and effective law, and thus can change with a new president. The same is true of executive orders, written by the President to govern executive branch agencies and officials. 

The president-elect has also made numerous comments criticizing NAFTA, which provides for TN visa status for a number of professionals from Mexico and Canada. While the U.S. has not formally withdrawn from an international trade treaty since the mid-1800s, the NAFTA treaty does contain a provision allowing a country to withdraw from it upon providing 6 months notice to the other parties to the treaty, and the President could do so without consent from Congress. Please stay tuned to our newsletter and our firm's News and Updates section of our website in the coming months for important information regarding any proposed changes or new executive actions that may affect immigrants and work-authorized non-immigrants.

U.S. v Texas

On June 23, 2016 the U.S. Supreme Court issued its opinion in the closely-watched case of U.S. v. Texas. The Court's opinion totaled only nine words: "The judgment is affirmed by an equally divided court." The court's 4-4 ruling demonstrates the significance of the death of Justice Antonin Scalia and the Senate's inaction on confirming Merrick Garland, President Obama's nomination to Supreme Court.

U.S. v. Texas was the culmination of an injunction granted to the State of Texas (joined by seventeen other states in their lawsuit) over President Obama's proposed Executive Actions on Immigration, originally announced in November 2014. The President's Actions included the expansion of the existing program for Deferred Action on Childhood Arrivals ("DACA") and the addition of a new program for Deferred Action for Parents of Americans ("DAPA"). These programs sought to assist individuals brought to the U.S. as children who are without status in the U.S. and the parents of U.S. citizens and permanent residents who are without status. Under both programs, the eligible individuals would be permitted to remain in the U.S. and work without fear of deportation.

On February 16, 2015, a federal judge in Texas issued an injunction to prevent implementation of these two programs (expanded DACA and DAPA), a decision the Obama administration appealed. On November 9, 2015, in a 2 - 1 decision, the 5th Circuit Court of Appeals in New Orleans affirmed the District Court's decision, halting President Obama's expanded DACA and DAPA programs. The Obama administration appealed and in April 2016 argued its case before the U.S. Supreme Court. With its divided decision last month, the Supreme Court's decision leaves the 5th Circuit Court of Appeals' decision in place, effectively blocking the President's Executive Actions for now. U.S. v. Texas, like other equally divided Supreme Court decisions, does not set precedent and thus is not a binding decision on any future cases concerning Executive Authority or immigration.  A full copy of the Supreme Court's opinion, along with briefs filed with the Court, can be found on the court's website.