New Development: DOS & CBP Release Additional Guidance on Travel Ban Following Monday’s Supreme Court Ruling

Posted in Department of State, Executive Order, President Trump's Administration, Travel, U.S. Customs and Border Protection (CBP), U.S. Department of State ("DOS")

On June 26, 2017, the Supreme Court partially lifted the injunctions granted by the Fourth and Ninth Circuits on President Trump’s second Executive Order commanding a temporary travel ban. The Supreme Court narrowed the application of travel ban, which will now only apply to nationals from the six designated countries “who lack any bona fide relationship with a person or entity in the United States.”

Department of State (DOS), the agency responsible for issuing visas at U.S. consulates, has been responsible for drafting the majority of government guidance on implementation, and we anticipate the largest impact to be on those processing visas abroad.  DOS has now provided initial guidance on what they will consider to be a “bona fide relationship.”  For business ties the relationship must be “formal, documented and formed in the ordinary course rather than for the purpose of evading” the travel ban. For family ties “close ties” will include a parent, spouse, child, adult son or daughter, son-in-law, daughter-in-law, or sibling in the United States.  Grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-law and sisters-in-law, fiancées, as well as additional extended family will not be considered “close.”

Guidance from Customs and Border Protection (CBP), the agency responsible for inspecting and admitting visa holders to the United States, directs implementation at the ports of entry begin at 8 p.m. Thursday, June 29 ; however, some airports have indicated they may begin implementation as early as 10:30 a.m. on Thursday, June 29.  All individuals currently in possession of valid visas will be permitted to travel.  Accordingly, CBP anticipates little impact at the ports of entry.

Supreme Court of the United States Partially Lifts Injunctions from Travel Ban – Implications for Foreign Nationals

Posted in Executive Order, President Trump's Administration, Travel

As previously reported, the Supreme Court of the United States lifted the injunctions that were granted by the Fourth and Ninth Circuits after President Trump issued his second Executive Order mandating a temporary travel ban. This means that the second Executive Order (EO) is now in effect as of June 29.

The injunctions for the travel ban were issued for three sections: 1) 90 day suspension of travel for nationals from the following six countries: Iran, Libya, Somalia, Sudan, Syria, and Yemen (Section 2(c)); 2) 120 day suspension of refugee admission into the United States (Section 6(a)), and 3) the reduction of the refugee cap (Section 6(b)).  Other parts of the EO were not addressed in the injunctions, but many were nevertheless effectively moot if those two sections were not in effect.

The Supreme Court, in lifting the injunctions on the EO, narrowed the scope of application for Sections 2(c), 6(a), and 6(b).  Specifically, those sections will only apply to nationals from the six designated countries “who lack any bona fide relationship with a person or entity in the United States.” This means that the travel ban and refugee admission sections will not apply to those who have a bona fide relationship with a person or entity in the United States. Specifically, the Supreme Court gave examples of what bona fide relationship means, which are the following:

  1. For individuals:  a close familial relationship.
  2. For entities:  a relationship that is formal, documented and formed in the ordinary course, and could include students and nonimmigrant workers.

The Supreme Court did not clarify how the bona fide relationship will be determined, by what entity it will be determined, and whether there will be any changes related to entry into the United States or the visa application process. The Department of Homeland Security and the Department of State have not yet issued any guidelines, but it is worth noting that the Supreme Court, in its analysis, references a waiver that a foreign national may apply for, on a case-by-case basis, if he or she can meet the criteria that denial of entry would: 1) cause undue hardship; 2) the entry would not pose a threat to national security, and 3) it would be in the  national interest for the person to enter the United States.

Commonly Asked Questions

Questions on International Travel/ Entry into the United States:

  • Who is affected?

Nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen who do not hold green cards or other valid visas, and do not have a bona fide relationship with a person or entity in the United States as of June 26, 2017.

  • What can you expect when traveling?

It is likely that there will be heightened security.  If you are traveling with a passport from one of the six countries, it is important to carry additional documents to prove your bona fide relationship to a person or entity in the United States.  Expected guidance from government agencies should be published shortly.

  • What if I am traveling with a passport from one of the six countries, but I have a valid visa stamp?

You may be permitted to travel into the United States, but CBP may want to see documents to prove your bona fide relationship to a person or entity in the United States.

  • What if you are a dual national?

The EO specifically states that dual nationals using a passport that is not from one of the six countries will not be affected, though you may be subject to additional scrutiny.

  • Should I apply for Global Entry?

You may use global entry or sign up if you are eligible.

  • Are Lawful Permanent Residents (LPRs) affected?

They will not be affected by the travel ban.

  • Is this Permanent?

The EO has been reinstated as of June 29, for a period of 90 days for the ban relating to nationals of the six listed countries and 120 days for refugees.  It can either then expire, or be extended per the president. The Supreme Court will hear arguments on the Ninth and Fourth Circuit cases in October, if the cases are not then deemed to be moot.

  • What if you are traveling to the United States from one of the six countries but not a national?

Be prepared for additional screening.

  • Will the list expand?

Possibly. The EO gives authority to add and remove countries.

Questions on Visa Issuance:

  • May I apply for a visa stamp?

Yes, if you are not using the passport of one of the six countries.

  • What if I do not have a second nationality? Will I qualify for a waiver?

The Department of State has not yet issued guidance, but we expect that guidance will be issued to allow an applicant who is a national of one of the six countries to prove a bona-fide relationship as of  June 26 to an individual or entity in the US.

  • What can I expect from my visa interview appointment if I have traveled to one of the six countries or have a second passport from one of the six countries?

Additional screening procedures are forthcoming.

  • Will I still qualify for a visa interview waiver if I am extending my visa?

Various consulates are still utilizing the drop-box option for those who qualify.

  • How do I know what each U.S. Consulate requires or if procedures are different?

You may check with each individual consulate website.

GT will continue to provide updates as more information becomes available.

Greenberg Traurig’s Laura Reiff and Kate Kalmykov Recognized by Human Resource Executive, Lawdragon

Posted in Awards & Recognitions

Greenberg Traurig’s Laura Reiff and Kate Kalmykov were recently recognized by Human Resource Executive, in a report researched by the Lawdragon organization for their work in immigration law. For the seventh consecutive year, the “Nation’s 20 Most Powerful Employment Attorneys – Immigration” list includes Laura Foote Reiff and a first time appearance in the publication’s list of the “Nation’s 40 Most Powerful Employment Attorneys – Up-and-Comers,” for Kate Kalmykov.

In addition to Immigration, seven additional attorneys are recognized by Human Resource Executive for their work in employment and traditional labor law.  Among those included on that list is Peter W. Zinober named to the “Hall of Fame” since 2014, the publication’s most coveted honor. Since 2013, the “Nation’s 100 Most Powerful Employment Attorneys” list includes Charles S. Birenbaum and James N. Boudreau, and, this year, David Long-Daniels and Jonathan L. Sulds are also included. Terence P. McCourt is recognized among the “Nation’s 20 Most Powerful Employment Attorneys – Labor” for the second consecutive year. Todd D. Wozniak appears again on the publication’s list of the “Nation’s 40 Most Powerful Employment Attorneys – Up-and-Comers.”

To read the full press release, click here.

BREAKING – Supreme Court of the United States Partially Lifts Injunctions Barring President Trump’s Travel Ban But Agrees to Hear Case in Fall of 2017

Posted in Department of Homeland Security, Department of State, Executive Order, Travel, U.S. Customs and Border Protection (CBP)

On Monday, June 26, 2017, the Supreme Court of the United States partially revived part of President Trump’s second Executive Order (EO-2)  mandating a temporary travel ban from six Muslim-majority countries for 90 days, which will be in effect on June 29, 2017. EO-2 also sought to suspend the U.S. Refugee Admissions Program and limit the number of refugees in this fiscal year.  The Supreme Court also granted certiorari to review the lower court decisions of the Fourth and Ninth Circuits that issued injunctions prohibiting the implementation of President Trump’s EO-2 beginning March 26, 2017.  Oral arguments are scheduled to take place in the Fall of 2017, when the Supreme Court’s next term begins.

President Trump issued EO-2 on March 6, 2017, which, among other things, restricts entry of nationals from six designated countries—Iran, Libya, Somalia, Sudan, Syria, and Yemen—for a temporary period of 90 days.  Iraq, which appeared in President Trump’s first Executive Order (EO-1), was removed from EO-2 because Iraq agreed to provide additional information about visa applicants to the United States, and accept the return of Iraqi nationals who were ordered removed from the United States. EO-2’s 90-day temporary travel ban was originally set to begin on March 16, 2017, and expire on June 14, 2017.  On June 14, President Trump issued a memorandum to Executive Branch officials declaring the effective date of EO-2 to be the date on which the lower courts’ injunctions are lifted or stayed.

At issue in the Supreme Court’s decision today are Sections 2(c) and 6 of EO-2.  Section 2(c) calls for the 90-day temporary travel ban prohibiting the entry of nationals from the six-Muslim majority nations to the United States. In EO-2, President Trump determined that the temporary travel ban of nationals from these six countries was necessary to ensure that dangerous individuals did not enter the United States while the United States developed “adequate standards” for applicants who are seeking visas to enter the United States. Section 6 freezes the U.S. Refugee Admissions Program and prohibits the admission of refugees into the United States.

In today’s decision, the Supreme Court held that President Trump can enforce the 90-day temporary travel ban that prohibits entry of nationals from the six designated countries “who lack any bona fide relationship with a person or entity in the United States.” The Supreme Court limited Section 2(c)’s scope, stating that this section “may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.” The Supreme Court held that the same standard should be applied to Section 6, which bars refugees from entering the United States. Specifically, Section 6 “may not be enforced against an individual seeking admission as a refugee who can credibly claim a bona fide relationship with a person or entity in the United States.”

The Supreme Court did not exhaustively list what sorts of credible claims of a bona fide relationship with a person or entity in the United States qualifies to be removed from EO-2’s purview, but noted that the relationships at issue in the present cases qualified. Specifically, the Supreme Court noted that individuals who were subject to the travel ban of EO-2 must have a close familial relationship with a person in the United States. “A foreign national who wishes to enter the United States to live with or visit a family member . . . clearly has such a relationship.” For entities, the individual must have a “formal, documented” relationship with the entity that was not formed simply to evade the EO-2’s reach. Foreign nationals who were accepted into a college or university, or accepted an offer of employment from an American company would qualify as a credible claim of a bona fide relationship according to the Supreme Court. Section 2(c)’s 90-day temporary travel ban begins today, June 29, 2017, and will expire on Sept. 27, 2017.

While it is not clear how U.S. Department of State and U.S. Customs and Border Protection will interpret and enforce the Supreme Court’s decision today, employers should note that a foreign-national employee from one of the six designated countries may be refused an employment visa or admission into the United States if the foreign national does not have a credible claim of a bona fide relationship with a U.S-based person or an American entity. It is important for impacted foreign-national employees who plan to travel internationally during the next 90 days to carry with them evidence of their employment relationship, which can include a signed offer of employment, employment verification letter, and recent pay statements, among other documents. Foreign-national students who plan to travel internationally may also carry with them their Form I-20 and a letter of enrollment issued by the academic institution. Finally, in light of this decision, for impacted individuals to secure a visa at a U.S. Consulate abroad or gain admission into the United States it is important to be able to document a close familial relationship with an individual in the United States. The U.S. Department of Homeland Security confirmed today in a statement that it will release additional details, particularly to potentially impacted nationals, on implementing EO-2 after consulting with the U.S. Departments of State and Justice.

Greenberg Traurig will continue to monitor events surrounding the Supreme Court’s decision and provide updates relating to relevant agencies in connection with the now revived EO-2.

USCIS to Resume H-1B Premium Processing for Physicians under the Conrad 30 Waiver Program

Posted in Conrad 30 Waiver Program, H-1B Premium Processing, USCIS

Starting Monday, June 26, USCIS will resume premium processing for all H-1B petitions filed for medical doctors under the Conrad 30 Waiver program, as well as interested government agency waivers. As background, the Conrad 30 program allows certain medical doctors to stay in the United States on a temporary visa after completing their medical training to work in rural and urban areas that have shortage of physicians. Premium processing remains suspended for all other H-1B petitions. USCIS has stated that it plans to resume premium processing of other H-1B petitions as workloads permit.

President Trump Issues Executive Order Amending Executive Order 13597

Posted in Executive Order, Non-Immigrant Visas, Travel

On June 21, President Trump issued an Executive Order Amending Executive Order 13597. This Executive Order rescinds a  provision, subsection (b)(ii) of Section 2,  of an Obama Administration era Executive Order Establishing Visa and Foreign Visitor Processing Goals and the Task Force On Travel and Competitiveness that read, “ensure that 80 percent of nonimmigrant visa applicants are interviewed within three weeks of receipt of application.”

Many observers view this rescission as necessary due to conflicting timelines presented by the Executive Orders with ongoing more aggressive vetting of applicants.

USCIS Issues Guidance Regarding Adjustment of Status Application Filing Dates for July 2017

Posted in Department of State, U.S. Department of State ("DOS"), USCIS, Visa Bulletin, Visas

USCIS has determined that for July 2017, the Final Action Dates chart in the Department of State (DOS) Visa Bulletin must be used for both family-sponsored filings and employment-based preference filings. By way of background, individuals who are present in the United States are eligible to file a Form I-485, Application to Adjust Status in connection with a family-sponsored or employment-based immigrant visa petition, as per the monthly Visa Bulletin published by DOS. The monthly Visa Bulletin contains information on current immigrant visa availability, specifically when statutorily limited visas will become available based on an individual’s priority date. The new USCIS guidance provides that for July 2017, the Final Action Dates chart in the DOS Visa Bulletin must be used for both family-sponsored filings and employment-based preference filings. To view the July 2017 Visa Bulletin, please visit our previous post.

DHS Rescinds Memorandum Addressing Expansion of Deferred Action for Childhood Arrivals and Deferred Action for Parents of Americans and Lawful Permanent Residents

Posted in Deferred Action for Childhood Arrivals, Deferred Action for Childhood Arrivals program, Department of Homeland Security, USCIS

The Nov. 20, 2014 DAPA memorandum, which to date has not been implemented, directed U.S. Citizenship and Immigration Services (USCIS) “to establish a process, similar to DACA, for exercising prosecutorial discretion through the use of deferred action, on a case-by-case basis” to certain undocumented parents who have “a son or daughter who is a U.S. citizen or lawful permanent resident” and satisfy a number of qualifying criteria, including: continuously residing in the U.S. since before Jan. 1, 2010; having no lawful immigration status on the date of application; and not falling within the Secretary of Homeland Security’s enforcement priorities, amongst other requirements. The DAPA memorandum also addressed enhancements to the Deferred Action for Childhood Arrivals (DACA) program.

Shortly after the issuance of the Nov. 20, 2014 DAPA memorandum (and prior to implementation), twenty-six states challenged the policies of the memorandum in the U.S. District Court for the Southern District of Texas. In Feb. 2015, the district court preliminarily enjoined the policies nationwide, determining that states would likely succeed on their claim that DHS failed to comply with notice-and-comment rulemaking procedures in violation of the Administrative Procedure Act. The Fifth Circuit Court of Appeals affirmed. The Supreme Court then affirmed the Fifth Circuit’s ruling by a divided vote (4-4), without issuing a substantive opinion. As of the issuance of the June 15 rescission memorandum, litigation on the DAPA memorandum was still pending before the district court.

Citing to President Trump’s Jan. 25, 2017 Executive Order No. 13768, “Enhancing Public Safety in the Interior of the United States,” the June 15 rescission memorandum, signed by John F. Kelly, Secretary of Homeland Security, states that, after consultation with the Attorney General and due to new immigration enforcement priorities, the Secretary has decided to rescind the Nov. 20, 2014 DAPA memorandum.

Though the Nov. 2014 DAPA memorandum has been rescinded, the June 2012 Memorandum Providing for Deferred Action for Childhood Arrivals (DACA) remains in effect. DACA allows certain individuals who entered the United States before the age of 16, and have not been convicted of a felony or major misdemeanor (or three minor misdemeanors), to remain in the country. DACA applicants must show that as of June 15, 2012, they were under the age of 31 and physically in the United States without lawful status. DACA also requires individuals to have continuously resided in the United States from June 15, 2007 to present, and show they are enrolled in school, or graduated high school (or obtained a GED), or were honorably discharged from the U.S. Armed Forces or Coast Guard. On June 15, 2017, Frequently Asked Questions (FAQs) on the rescission memorandum were posted on the Department of Homeland Security’s website, confirming that DACA applications will continue to be accepted and DACA recipients who were issued three-year extensions prior to the district court’s injunction will not be affected by the rescission of the Nov. 2014 DAPA memorandum. Further, the FAQs state that such applicants will be eligible to apply for a two-year extension upon their expiration and no DACA-based work permits will be terminated prior to their current expiration dates.

Greenberg Traurig will continue to monitor developments and provide updates in connection with DACA.

Greenberg Traurig’s Rebecca Schechter Presented at the Council for Global Immigration 2017 Symposium

Posted in Immigration Law

Rebecca Schechter, Of Counsel in the Business Immigration and Compliance Practice at global law firm Greenberg Traurig, LLP, recently participated in the Council for Global Immigration (CFGI) 2017 Symposium in Arlington, VA. Rebecca spoke on the panel, “Handling Difficult Immigration Conversations in the Corporate Environment,” which addressed immigration issues related to hiring and green card sponsorship. The CFGI 2017 Symposium included conversations and opportunities that shape the global workplace. To read more about the symposium, please click here.

From L to R: Kristin Faison (Oath), Jessica Lee Young (Capgemini America) and Rebecca Schechter (Greenberg Traurig)

From Left to Right: Kristin Faison (Oath), Jessica Lee Young (Capgemini America) and Rebecca Schechter (Greenberg Traurig)

From L to R: Rebecca Schechter (Greenberg Traurig), Jessica Lee Young (Capgemini America) and Kristin Faison (Oath)

From Left to Right: Rebecca Schechter (Greenberg Traurig), Jessica Lee Young (Capgemini America) and Kristin Faison (Oath)

Proposed California Law Would Increase Employer Responsibilities When Faced With Immigration Worksite Enforcement Actions

Posted in Department of Labor, Department of State, Form I-9, H-1B, L-1

In response to the Trump administration’s stance on immigration enforcement, California is considering legislation (Assembly Bill 450 (Chiu)) which would prohibit employers from providing federal immigration officials with access to nonpublic areas of the workplace without a judicial warrant. While aiming to provide new protections to workers, the bill’s broad language does not eliminate any employer obligations currently arising from Federal law. It does, however, have the potential to create contradictory and burdensome new requirements for employers in cases of government worksite investigations and internal audits conducted for compliance purposes.

AB 450 was introduced in February of this year and has been amended several times. The bill specifically references I-9 audits in many sections, while generally referencing government worksite enforcement actions in others. AB-450 would require employers to, among other things, notify all employees and their representatives, in writing, within 24 hours, that a worksite enforcement action has occurred. The requirement for notification of employee representatives probably refers to unions, but there are other circumstances when an employer may know an employee has legal representation (i.e. active workers compensation claims brought on behalf of employees). This requirement could arguably require an employer to maintain a list of the representatives of all employees for use in the event of such action. Moreover, the bill’s broad language may extend its notification requirements to include routine site visits performed for H-1B, L-1, and other nonimmigrant visa workers, as well as any other immigration-related inquiries conducted by any U.S. government agency, such as the U.S. Department of State or the U.S. Department of Labor. In addition to requiring notice in cases of government action, the bill would also require employers to notify the California Labor Commissioner prior to performing a self-audit of Forms I-9, a process many employers undertake to ensure compliance with Federal law.

The penalties AB 450 proposes for violations are significant. Employers who fail to comply could be assessed from $2,000 to more than $5,000 for a first violation and from $5,000 to more than $10,000 for each subsequent violation.

AB 450 passed the Assembly on May 31 and has been referred to the Senate Labor and Industrial Relations and Senate Judiciary Committees. Because it is keyed fiscal, the deadline for action by these policy committees is June 14, just prior to the legislature’s month long summer recess. We will keep you updated on the bill’s progress as it could have a significant impact on the internal policies of any California employer.

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