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The heavily anticipated new Executive Order (EO), “Protecting the Nation from Foreign Terrorist Entry into the United States,” banning nationals from six countries from entering the United States, was signed by President Donald Trump on March 6, 2017 with an effective date 10 days following on March 16, 2017. This new EO revokes and replaces the previous EO 13769 signed on Jan. 27, 2017. The replacement EO provides additional clarification that stemmed from judicial review. For a summary of EO 13769, and a history of events that transpired, please visit.

Highlights of changes in the new EO include:

  • The six countries under the travel ban are Iran, Libya, Somalia, Sudan, Syria, and Yemen.  Iraq has been lifted from the travel ban.
  • Clarification has been given that lawful permanent residents are not subject to the travel ban, and dual nationals may use another passport (that is not from one of the six countries) to enter the United States.
  • Waivers may be granted to individuals applying for a visa who are subject to the travel ban if: 1) denying entry during this period would cause undue hardship, 2) the entry would not pose a threat to national security, and 3) it would be in the national interest of the United States. Examples were provided of situations where a waiver would be appropriate.
  • Entry under the U.S. Refugee Admission Program will be halted for 120 days from March 16, 2017. Notably, the blanket halt on Syrian refugees has been removed.
  • The Visa Interview Waiver Program is suspended until further guidance from the Department of State.
  • Those who are in the United States will not have their visas revoked.

The new EO provides an explanation for some components of EO 13769 that are now rescinded, amended, or clarified in this Order. A section-by-section analysis is below:

Section 2:  Suspension of Visa Issuance- Iraq Removed

The text of this EO calls for the suspension of issuance of visas to nationals of Iran, Libya, Somalia, Sudan, Syria, or Yemen, except in case-by-case waivers, for 90 days from the effective date of the EO (March 16, 2017), while an ongoing assessment of the countries for terrorist threats is conducted. Notably, Iraq has been removed as one of the original countries subject to the travel ban. The reason cited is that the United States has been closely working with the Iraqi government and because of the military presence in Iraq, and Iraq’s commitment to fight ISIS, removing this country from the travel ban is justified.

In addition, the Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, will conduct a worldwide review to identify additional information, if necessary, from any country to ensure that the individual applying for a visa benefit is not a security threat. Within 20 days of March 16, 2017, a required report will be submitted to the President on the results of the worldwide review. Copies of this report will also be given to the Secretary of State, the Attorney General, and the Director of National Intelligence.

Once the report has been submitted to all parties, the Secretary of State shall request the foreign governments to provide the information needed within 50 days of notification. After the 50 day period has expired, the Secretary of Homeland Security, with the Secretary of State and the Attorney General, will submit to the President a list of countries where certain categories of foreign nationals should be prohibited from visa issuance because they have not provided the information. Additional countries may also be submitted for consideration to be added to the list of countries where restrictions or limitations are deemed necessary to protect the United States. In the same way, countries may be recommended for removal from the list as well.

Four reports, each submitted within 30 days of the effective date of the Order (March 16, 2017) to President Trump, are required to document the progress. Continue Reading New Travel Ban Order to Temporarily Halt Entry for Those Seeking New Visas from 6 Muslim-Majority Countries

On February 3, 2017,  U.S. District Judge James L. Robart of the U.S. District Court for the Western District of Washington at Seattle issued a Temporary Restraining Order (“TRO”) halting the enforcement of the Executive Order (“EO”) “Protecting the Nation from Foreign Terrorist Entry into the United States,” signed by President Trump on January 27th, 2017.  The TRO was issued in connection with State of Washington, et al v. Donald Trump, et al (C17-0141JLR), filed with the Court earlier this week.

The TRO is effective nationwide and prohibits the enforcement of the ban on entry of nationals of the impacted countries with nonimmigrant (temporary) and immigrant (permanent) visas, refugees, and the permanent ban on Syrian refugees.

In granting the TRO, the Court found the State of Washington, and the other States in the U.S. have shown that the litigation against the EO is likely to be successful, that the States will suffer irreparable harm with respect to familial relationships, employment, travel, business, and education due to the enforcement of the EO.

It has been reported that U.S. Customs and Border Protections (CBP) has informed the airlines that they may board foreign nationals of the impacted countries who have visas and that they will be allowed entry to the U.S. in compliance with the TRO.  It has also been reported that the State Department has reversed its prior provisional revocation of valid visas of the impacted foreign nationals, allowing them to utilize these visas for entry to the U.S.

On February 4, 2017, the White House released a statement that they intend to seek a Stay of the TRO immediately and consider the provisions of the EO to be lawful and within the President’s authority.

Update:  On February 4, 2017, subsequent to the filing with the court of a notice of its intent to appeal the TRO, the U.S. Department of Justice (DOJ) filed an Emergency Motion to stay (or stop) the TRO with the U.S. Court of Appeals for the Ninth Circuit, pending a full hearing in connection with the lower court’s decision to grant the TRO.  The Ninth Circuit denied DOJ’s Emergency Motion and ordered briefing from both parties in connection with the lower court’s decision.  DOJ’s brief is set to be due at 11:59 pm on February 5, 2017, with the State of Minnesota et al having to file their reply brief by 3 pm on February 6, 2017.

GT will continue to monitor this constantly changing situation and provide updates.

We have prepared a serious of Questions and Answers below addressing some of the most commonly asked questions with regard to this Executive Order (EO). GT will continue to monitor developments and provide up to date information.

Q1:         What do the provisions of the EO address?

A1:         The provisions of the EO address several issues:

1. Ban of entry to the United States for nationals of seven countries: Iran, Iraq, Sudan, Somalia, Yemen, Libya, and Syria, whether with nonimmigrant (temporary) or immigrant (permanent) visas for 90 days. At the conclusion of 90 days, the ban is not automatically lifted; instead, there are a number of affirmative steps listed in the EO to once again enable such entry.

2. Suspension of the Visa Interview Waiver program for all visa applicants. Instead, the U.S. Department of State will mandate visa interviews for all applicants for nonimmigrant visas, with the following exceptions:

a. Diplomatic and official visa applicants (A-1, A-3, G-1, G-2, G-3, G-4, NATO-1 through-6, C-2, and C-3);

b. Visa applicants who are under 14 or over 79 years of age;

c. Visa applicants who previously held a visa in the same category, which expired less than 12 months before the present visa application.

3. Ban of entry to refugees to the United States from Syria indefinitely.

4. Reduction of the total number of refugees to enter the United States in Fiscal Year 2017 to 50,000.

5. Establishment of requirements for “extreme vetting” for a finding of eligibility of refugee status.

To read the full GT Alert, click here.

As we previously reported, President Donald Trump signed a third Executive Order (EO) related to immigration on Jan. 27, 2017.  The stated purpose of this EO is to protect the United States from terrorism stemming from foreign nationals of other countries by limiting entry and visas to certain individuals, titled “Protecting the Nation from Foreign Terrorist Entry into the United States.” In practice, it will block admission to the United States for at least 90 days for nationals of seven countries (Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen) who hold nonimmigrant visas, such as H-1Bs and L-1s, and green card holders.

Suspension of Visa Issuance

The text of this EO calls for the suspension of issuance of visas to nationals of certain countries where concerns of terrorism arise. The Secretary of Homeland Security, consulting with the Secretary of State and the Director of National Intelligence, is tasked with the duty to submit a report to President Trump, in 30 days, regarding the review of information necessary for visa adjudications to verify individual identity and a list of countries that are of concern.

To alleviate the burden of investigation by the agencies, and to ensure that review is thoroughly completed with the resources needed, President Trump proclaims in the Executive Order that any immigrant and nonimmigrant entry into the United States shall be suspended for 90 days by persons who are nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. This 90 day entry ban excludes those traveling to the United States on diplomatic visas, NATO visas, C-2 visas for travel to the United Nations, and G-1, G-2, and G-4 visas, but includes those entering the United States on L-1, H-1B, and most work visas.

The definition of “national” typically refers to a person born in that country, who may or may not be a citizen of the country. In some cases, it can also refer to the children of such individuals born in other countries to parents who in turn were born in one of the listed countries.  Because of the broad way in which the Order appears to reference “nationals,” in the process of enforcement of the Order, it has been interpreted to include all those fitting the definitions outlined above.

Once the report is received by the Secretary of State regarding the information needed to continue adjudication of immigrant and nonimmigrant visas, information shall be requested of all foreign governments that have not supplied such information within 60 days of notification. After the 60 day period has ended, the Secretary of Homeland Security, consulting the Secretary of State, is required to submit to President Trump a list of countries recommended to be put on a list that would prohibit the entry of foreign nationals from the countries that do not supply the required information. The list of countries would exclude its nationals who travel for the same categories as mentioned above. The Executive Order includes language that gives the Secretary of Homeland Security and the Secretary of State the discretion to add additional countries to this list for President Trump’s review. In addition, visas may also be issued on a case-by-case basis to nationals even if their countries are on the list. Four reports, each submitted within 30 days of the Order to President Trump, are required to document the progress.

Implementing New Standards for Screening Those Seeking Immigrant and Nonimmigrant Visas

The Secretaries of State and Homeland Security, the Director of National Intelligence, and the Director of the FBI are tasked with implanting a program that will develop and change the uniform screening standard and procedure at the U.S. consulate, including the following:

  • Establishing a database of identity documents to ensure they are not used by multiple applicants;
  • Application forms with amended questions aimed at identifying fraudulent answers and malicious intent;
  • Questions to evaluate whether the applicant will be a positively contributing member of society;
  • Process to assess whether the applicant has the intent to commit criminal or terrorist acts in the United States.

Suspensions for the Fiscal Year 2017

President Trump, through this Executive Order, is temporarily suspending the following until further review and notice:

  • Suspension of the U.S. Refugee Admission Program (USRAP) for 120 days. During this period, a review will be conducted to determine and change the adjudications procedure. Refugee applicants already in the process may be admitted upon the initiation and completion of the revised procedures. Refugee claims made by individuals on the basis of religious-based persecution (if the religion is a minority religion in the country of nationality) will be made a priority once USRAP is continued;
  • Suspension of Syrian refugees until further determination;
  • Suspension of refugee entry until admissions are permissible, and at that time, such numbers shall not exceed 50,000 per fiscal year; and
  • Suspension of the visa interview waiver program for anyone seeking a nonimmigrant visa.

The Executive Order includes a provision that would allow the admission of refugees on a case-by-case basis, if it is in the national interest, or when the person is already in transit and denying admission would cause undue hardship. A report must be submitted by the Secretary of State on claims made by individuals on the basis of religious-based persecution within 100 days of the Order, and a second report within 200 days of the Order. The Order also includes a provision to assist state and local jurisdictions with their involvement in the resettlement process.

Other Provisions

The Executive Order includes other provisions related to the entry of foreign nationals into the United States. These include the following:

  • Expedited completion of the biometric entry-exit tracking system. Three reports shall be submitted within the first year of the Order, and a report shall be submitted every 180 days until the system is completed and operational;
  • Review and Change of Visa Validity Reciprocity.  The Secretary of State is required to review all nonimmigrant visa reciprocity agreements, including all categories, duration of time, and fees. If the foreign country does not treat the U.S. national in a reciprocal manner, the Secretary of State will adjust the conditions to match;
  • Reports for Transparency. The Secretary of Homeland Security will publish a report for public viewing, every 180 days, a list of foreign nationals who have been charged, convicted, or removed from the United States based on terrorism-related activity; the number of foreign nationals radicalized after entry into the United States; information regarding the number and types of acts of gender-based violence against women; and any other relevant information.

As this Order is expansive, Greenberg Traurig will continue to monitor the conditions and changes. In addition, we expect additional Executive Orders related to immigration in the coming days and weeks. To receive updates, please subscribe to our blog.

On Jan. 27, 2017, President Donald J. Trump signed an Executive Order (EO) on Immigration entitled “Protecting the Nation from Terrorist Attacks by Foreign Nationals.” The EO impacts, among many other processes, the entry to the United States for immigrants and non-immigrants from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. The EO also impacts the Visa Interview Waiver program, widely utilized by a number of U.S. Consular Posts to renew visas for applicants. This is expected to have a wide effect, including on employers with foreign national employees who are nationals or dual nationals of the above listed countries and are here on work visas and as green card holders. To read the full GT Alert click here.

shutterstock_443232061_778x360By notice published in the Federal Register on Jan. 17, 2017, the Department of Homeland Security (DHS) announced that it will extend the Temporary Protected Status (TPS) for nationals of Somalia (and for individuals without nationality who last habitually resided in Somalia) for an 18-month period from March 18, 2017, through Sept. 17, 2018. Those individuals who wish to extend their TPS status must re-register during a 60 day registration period: Jan. 17, 2017, to March 20, 2017.

Somalia became a TPS designated country on Sept. 16, 1991, and TPS has been renewed based on the country’s continuing armed conflict and conditions (both extraordinary and temporary) that prevent Somali nationals from returning to Somalia in safety. Individuals who are granted TPS benefits cannot be removed from the United States on grounds that the U.S. government has determined that conditions in their home country are unsafe, such as environmental disasters and ongoing armed conflict, as well as other temporary conditions that are deemed extraordinary. Individuals holding TPS may make a separate application to obtain an employment authorization document (EAD) to work in the United States and they may obtain travel authorization to travel outside the United States. The granting of TPS does not, however, result in or lead to permanent resident status. Individuals with a criminal background or who pose a threat to national security are not eligible for TPS. Other countries that have had TPS designation include: El Salvador, Guinea, Honduras, Liberia, Nepal, Nicaragua, Sierra Leone, South Sudan, Syria, and Yemen. For more information, please visit:   USCIS TPS webpage.

 

*Not admitted to the practice of law.

Today, the House Judiciary Committee will consider H.R.5203, the Visa Integrity and Security Act of 2016.  The bill is authored by Representative Randy Forbes of Virginia.

The bill’s purpose is to enhance security procedures for the processing of both immigrant and nonimmigrant visas.  We provide a sectional summary of the bill below.

Section 2 of the bill adds new section 211A to the Immigration and Nationality Act (INA) to require that all petitions and applications filed with the Department of Homeland Security (DHS) or a consular officer contain all required signatures.  In the case of immigrant visa applications, the bill requires that each application shall be signed in the presence of the consular officer, and verified by oath.  Section 211A also specifies that all documentation provided in support of either an immigrant or nonimmigrant visa must be translated into English.  Section 211A requires that no petition or application may be approved until any additional information requested by DHS or a consular officer is provided consistent with any deadline specified in the request.

New section 211B mandates that background checks be conducted for all petitioners or applicants to determine whether an individual poses a “national security threat” or is otherwise ineligible for a visa or admission to the United States.  The background check required in this section “shall include” a review of each individual’s social media activity.  Further, the section requires that for nationals of Iran, Iraq, Libya, Somalia, Syria, Sudan, Yemen, or another country the DHS Secretary “determines appropriate,” a security advisory opinion must be completed prior to issuance.  The section outlines certain exceptions to this requirement.

In the case of petitions and applications based upon a biological relationship, section 211B requires that a genetic test must be obtained proving the biological relationship between petitioner and beneficiary, and that such test must be submitted at the time of application.  The bill specifies that the test shall be obtained at the expense of the petitioner or applicant.  Finally, the section requires that DHS must conduct an in-person interview with every person seeking “any benefit” under the INA, with the exception of a work authorization.  The section permits the Secretary to waive this requirement for individuals 10 years of age or younger.

Section 3 directs DHS to prepare a plan for the use of “advanced analytics” software to detect immigration benefit fraud and potential national security threats.  Section 3 also requires DHS to complete a benefit fraud assessment by fiscal year 2021 for the following visa categories: VAWA self-petitioners, visas issued under section 101(a)(15)(K) (spousal and fiancé), visas issued under section 101(a)(27)(J) (juvenile), visas issued under section 101(a)(15)(U) (U visas for victims of crime or those aiding law enforcement), visas issued under section 101(a)(27)(C) (special immigrant—minister), applications for asylum under section 208, applications for adjustment of status under section 209, and petitions for visa or status under section 201(b).

Section 4 provides authority to the Secretary of State to impose surcharges to support visa security activities.  Section 4 also amends the Homeland Security Act of 2002 to require, within four years following enactment of the bill, the assignment of DHS personnel to “each diplomatic and consular post at which visas are issued.”  The section spells out the requirements for cooperation from the Department of State to implement this requirement.

Section 5 of the bill amends section 291 of the INA concerning the burden of proof upon a petitioner or applicant for an immigration benefit.  The proposed amendment would change the current standard, “to the satisfaction of the consular officer” to the standard that each individual prove eligibility or admissibility by “clear and convincing” evidence.

Finally, Section 6 mandates a report to be conducted by the Government Accountability Office (GAO) to “review and report to Congress on the security of nonimmigrant and immigrant visa application processes.”

GT will monitor the House Judiciary Committee’s consideration of this legislation and will provide updates here in relation to the bill’s progress in the House of Representatives.

As part of its efforts to educate the public about the new changes to the Visa Waiver Program (VWP) resulting from the enactment of the Consolidated Appropriations Act of 2016, the U.S. Customs and Border Protection (CBP) published Frequently Asked Questions dealing with these changes.

By way of background, the VWP permits citizens of 38 countries to travel to the United States  for business or tourism without the need to obtain a visa.  All prospective VWP travelers, however, must obtain pre-travel authorization through CBP’s Electronic System for Travel Authorization (ESTA).  On Dec. 18, 2015, President Obama signed into law the Consolidated Appropriations Act 2016 which included the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 (the Act).  Under provisions of the Act, new eligibility requirements for travel were established.  Those who do not meet the new standards are required to obtain a B-1/B-2 visa from a U.S. Embassy before they can travel to the United States.  ESTA has been updated to include additional questions to address the new eligibility requirements.

The VWP restricted travel utilizing ESTA to the following individuals:

  • Nationals of VWP countries who were present in Iran, Iraq, Syria and Sudan on or after March 1, 2011 (with limited exception).  Since enactment, Department of Homeland Security which has the authority to add additional countries has added Libya, Somalia and Yemen to the list.
  • Nationals of VWP countries who are also nationals of Iraq, Iran, Syria or Sudan.

The CBP’s recently published FAQ’s gave some guidance to the implementation of the Act.  Among other things, it addressed the following:

  • What are the exceptions to the physical presence restriction to ESTA?  (Answer: Travel was for the purpose of representing the program country on official military orders or official government business.  These exceptions do not apply to the dual national restriction).
  • What should a person do if he or she falls under one of the restrictions? (Answer: Apply for a visa at an American Embassy that has jurisdiction over your place of residence or nationality).
  • What are the additional questions that are now included in ESTA? (Answer: The added questions relate to travel to the restricted countries and whether the applicant has been issued a passport or national identification card by another country.  Depending on the answers given, the applicant will be directed to answer additional questions).
  • The FAQ’s deal with the issue of who is entitled to a waiver of the restrictions and the process to obtain the waiver.  Also, the FAQ’s address the process undertaken to revoke existing ESTA’s and the means utilized by CBP to advise prior travelers of the revocation of their ESTAs.
  • How are dual nationals or dual citizens defined?  (Answer: The CBP will determine dual citizenship or nationality in accordance with U.S. legal standards and practices).

This post updates our post from Jan. 22, 2016, concerning guidance released by the U.S. Department of State about implementation of the Visa Waiver Program (VWP) Improvement and Terrorist Travel Prevention Act. We have updated the post to provide a summary and link to additional information published by U.S. Customs and Border Protection (CBP) concerning the implementation and operation of the new VWP law.  The CBP document can be accessed here.

In its FAQs, CBP reiterates the two new barriers to VWP participation based on travel and dual nationality.  CBP reports that ESTA travelers who are “known” to be included in the dual national category will be notified in late January that their ESTA is no longer valid.  CBP also reports that it is working on notification to ESTA travelers who have traveled to Iran, Iraq, Syria, or Sudan.

Continue Reading U.S. Customs and Border Protection Provides Additional Guidance on Implementation of New Visa Waiver Program Law

On Jan. 21, 2016, the Department of State (“Department”) announced that it had begun the implementation of changes to the Visa Waiver Program (VWP), which were enacted as part of the Consolidated Appropriations Act, 2016.  The Department reiterated that nationals of the 38 VWP countries who had traveled to Iran, Syria, Iraq, or Sudan after March 1, 2011, would no longer be eligible to use the VWP.  We refer to these as travel restrictions.  Furthermore, as provided by the new law, nationals of VWP countries who are also nationals of Iran, Syria, Iraq, or Sudan would also not be eligible to participate in the VWP.  These are nationality restrictions.  It is important to note that Canadian citizens, who are not required to obtain a visa for purposes of U.S. travel (and are not VWP participants), are not affected by the new laws.

In its announcement, the Department provided further clarification in regard to the new law’s implementation.  As of Jan. 21, 2016, any individual who currently holds a valid Electronic System for Travel Authorization (ESTA) and who had indicated on the ESTA application that they held dual nationality with Iran, Syria, Iraq, or Sudan, will have their ESTAs revoked.  We note that under the terms of the new VWP law, additional countries may be added to the current list.

Continue Reading U.S. Department of State Announces Implementation of New Visa Waiver Program Law