New Administration Halts Implementation of Pending Regulations, Withdraws Travel Ban

The incoming administration has issued an order halting the implementation of all proposed rules that are not yet final for 60 days (so until March 20, 2021). This includes the DOL wage change rules as well as the USCIS changes to the H-1B process (see a description of these rule changes here). Hopefully, the rule changes will be withdrawn, but we will keep you updated on that.

Another USCIS change in terms of H-1B’s is now withdrawn. USCIS had a proposed amendment that had not yet been published in the Federal Register, which would have changed the rules in terms of the employer-employee relationship and third party placements (a description of the rule can be found here). However, the executive action by the Biden administration has automatically withdrawn all rules not yet published. Hence, this rule will not be implemented.

Additionally, through an executive order, the Biden administration has withdrawn the executive order and Proclamations that banned the entry of people from certain countries (mostly Muslim) and allowed for heightened scrutiny in many cases. In addition, the order has also included a provision requiring the Embassies to re-open cases denied because of these Executive orders and re-adjudicate them as well as ordering the Embassies to clear out their backlogs quickly. However, as of yet, the ban on issuance of immigrant visas and some temporary visas because of the Covid pandemic is still in place, as are the travel restrictions from Europe and other countries with high infection rates. If you have any specific questions about whether a particular order affecting your immigration or a family member is still in effect please contact me and I am happy to help.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

Executive Orders relating to Limiting the entry of Immigrants and Non-immigrants Extended through March 31, 2021

Yesterday, on the last day that the executive orders limiting the entry of Immigrants and Non-immigrants were in force, the President extended both orders through March 31, 2021.

The orders limited US Consulates and Embassies’ ability to issue immigrant visas and certain non-immigrant visas, including H-1Bs, some J-1s, and other visa types (See this article for a full discussion).

Those who were waiting for the orders to expire so that Parents and others could get immigrant visa interviews or so that they could enter the US on an H-1B or another non-immigrant visa will have to wait a little longer. The hope is that the Biden administration will revoke the executive order upon getting sworn in, but we will have to see. Hopefully, the orders will be rescinded by the end of the month. We will keep you posted.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

How does the new Proclamation from the President Affect you?

On April 22, 2020. President Trump issued a proclamation “Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak.”

This proclamation is effective at 11:59 pm (ET) on April 23, 2020. The proclamation will expire 60 days from its effective date and may be continued.

Per the proclamation, the suspension and limitation on entry pursuant to section 1 of this proclamation applies to individuals who:

  1. are outside the United States on the effective date of this proclamation;
  2. do not have an immigrant visa that is valid on the effective date of this proclamation; and
  3. do not have an official travel document other than a visa (such as a transportation letter, an appropriate boarding foil, or an advance parole document) that is valid on the effective date of this proclamation or issued on any date thereafter that permits him or her to travel to the United States and seek entry or admission.

Exclusions include:

(b) The suspension and limitation on entry pursuant to section 1 of this proclamation shall not apply to:

(i) any lawful permanent resident of the United States;

(ii) any alien seeking to enter the United States on an immigrant visa as a physician, nurse, or other healthcare professional; to perform medical research or other research intended to combat the spread of COVID-19; or to perform work essential to combating, recovering from, or otherwise alleviating the effects of the COVID-19 outbreak, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees; and any spouse and unmarried children under 21 years old of any such alien who are accompanying or following to join the alien;

(iii) any alien applying for a visa to enter the United States pursuant to the EB-5 Immigrant Investor Program;

(iv) any alien who is the spouse of a United States citizen;

(v) any alien who is under 21 years old and is the child of a United States citizen, or who is a prospective adoptee seeking to enter the United States pursuant to the IR-4 or IH-4 visa classifications;

(vi) any alien whose entry would further important United States law enforcement objectives, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees, based on a recommendation of the Attorney General or his designee;

(vii) any member of the United States Armed Forces and any spouse and children of a member of the United States Armed Forces;

(viii) any alien seeking to enter the United States pursuant to a Special Immigrant Visa in the SI or SQ classification, subject to such conditions as the Secretary of State may impose, and any spouse and children of any such individual; or

(ix) any alien whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.

By the above terms, the proclamation only affects those coming to the US as “immigrants”, not those coming as non-immigrants.  It also only affects those not in the United States, so it does not affect the adjustment of status process either.

We are happy to answer any additional questions about the application of the above, but please do understand, as of this writing, no formal guidance has been released so we can only base our answers on what is written in the above proclamation, and that may change once USICS, DOS and ICE issue their guidance documents.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

Additional Countries Added to Travel Ban

Immigration Lawyer in Houston New State Department 90-Day RuleOn January 31, 2020 President Trump issued a Presidential Proclamation expanding the Travel Ban enacted in 2018 to include certain foreign nationals of the following six countries: Burma (Myanmar), Eritrea, Kyrgyzstan, Nigeria, Sudan, and Tanzania.

According to the Department of Homeland Security, these additions were based on an assessment from the Department of Homeland Security after reviewing updated security assessment criteria first established after the first iteration of the travel ban.

It should be noted that restrictions have only been placed on those seeking immigrant visas from the newly added countries. Individuals from these countries seeking nonimmigrant visas should not be restricted. The effective date of the expansion is February 21, 2020 at 12:01AM EST.

It should also be noted that the restrictions are for those seeking immigrant visas ABROAD.  Those in the US, filing an adjustment application, should not face this restriction.

Updated List of Countries and Restrictions:

ERITREA:     Suspends the entry of immigrants, except as Special Immigrants who have provided assistance to the U.S.government.

KYRGYZSTAN:     Suspends the entry of immigrants, except Special Immigrants who have provided assistance to the U.S.government.

IRAN:     Suspends the entry of immigrants and all nonimmigrants, except F (student), M (vocational student) and J(exchange visitor) visas, though they are subject to enhanced screening.

LYBYA:     Suspends the entry of immigrants and temporary visitors on business or tourist visas (B-1/B-2).

MYANMAR:     Suspends the entry of immigrants, except Special Immigrants who have provided assistance to the U.S.government.

NIGERIA:     Suspends the entry of immigrants, except Special Immigrants who have provided assistance to the U.S.government.

NORTH KOREA:     Suspends the entry of all immigrants and nonimmigrants.

SOMALIA:     Suspends the entry of immigrants and requires enhanced screening of all nonimmigrants.

SUDAN:     Suspends the entry of Diversity Visa immigrants

SYRIA:     Suspends the entry of all immigrants and nonimmigrants.

TANZANIA:     Suspends the entry of Diversity Visa immigrants

VENEZUELA:     Suspends the entry of certain government officials and their family members on business or tourist visas(B-1/B-2).

YEMEN:     Suspends the entry of immigrants and temporary visitors on business or tourist visas (B-1/B-2).

Scope:

Unless an exemption applies or the individual is eligible for a waiver, the travel restrictions apply to foreign nationals of the designated countries who:

(i) are outside the U.S. on the applicable effective date;
(ii) do not have a valid visa on the applicable effective date; and
(iii) do not qualify for a reinstated visa or other travel document that was revoked under Presidential Executive Order 13769.

Exemptions:

The travel restrictions in the proclamation do not apply to:

• lawful permanent residents;
• foreign nationals who are admitted to or paroled into the U.S. on or after the applicable effective date;
• foreign nationals who have a document other than a visa (e.g., transportation letter, boarding foil, advance parole document) valid on the applicable effective date or issued on any date thereafter;
• Dual nationals of a designated country who are traveling on a passport issued by a nondesignated country;
• Foreign nationals traveling on a diplomatic visas, NATO visas, C-2/U.N. visas, or G-1, G2, G-3, or G-4 visa; or
• Foreign nationals who have been granted asylum in the U.S., refugees who have been admitted to the U.S.; or individuals who have been granted withholding of removal, advance parole, or protection under the Convention Against Torture.

Waivers:

A waiver may be granted if a foreign national demonstrates to the consular officer’s or CBP official’s satisfaction that:

(a) Denying entry would cause the foreign national undue hardship;
(b) Entry would not pose a threat to the national security or public safety of the U.S.; and
(c) Entry would be in the national interest.

• Waivers may not be granted categorically but may be appropriate in the following situations:

  1. The foreign national has previously been admitted to the U.S. for a continuous period of work, study, or other long-term activity, is outside the U.S. on the applicable effective date, seeks to reenter the U.S. to resume that activity, and the denial of reentry would impair that activity;
  2. The foreign national has previously established significant contacts with the U.S. but is outside the U.S. on the applicable effective date for work, study, or other lawful activity; o The foreign national seeks to enter the U.S. for significant business or professional obligations and the denial of entry would impair those obligations;
  3. The foreign national seeks to enter the U.S. to visit or reside with a close family member (e.g., a spouse, child, or parent) who is a USC, LPR or lawful nonimmigrant, and the denial of entry would cause undue hardship;
  4. The foreign national is an infant, a young child or adoptee, an individual needing urgent medical care, or someone whose entry is otherwise justified by special circumstances;
  5. The foreign national can document that he or she has provided faithful and valuable service to the U.S. Government;
  6. The foreign national is traveling for purposes related to an international organization designated under the International Organizations Immunities Act (IOIA), traveling for purposes of conducting meetings or business with the U.S. Government, or traveling to conduct business on behalf of an international organization not designated under the IOIA;
  7. The foreign national is a Canadian permanent resident who applies for a visa at a location within Canada;
  8. The foreign national is traveling as a U.S. Government-sponsored exchange visitor; or
  9. The foreign national is traveling to the U.S. at the request of a U.S. Government department or agency, for legitimate law enforcement, foreign policy, or national security purposes.

For additional information regarding preparing and submitting a waiver on behalf of foreign nationals who are subject to Travel Ban please contact our office.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

President Issues New Travel Restrictions

imagesOn September 24, 2017, the President issued a new Executive Order (“EO”) entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or other Public Safety Threats”.  This new EO builds upon the last order, which was only valid for 90 days.  However, part of the old EO directed DHS to do a worldwide review to determine what additional information is needed from each foreign country to assess whether foreign nationals who seek to enter the United States pose a security or safety threat.  DHS completed that review and gave the President a list of seven countries that had “inadequate” information sharing practices.  The new EO implements certain types of restrictions against nationals of these seven countries (plus one additional country that the President felt posed security risks) in terms of their ability to get certain visas.

Who Does the Ban Affect?

The countries that are part of this new Executive Order are:

  1. Chad
  2. Libya
  3. Iran
  4. North Korea
  5. Syria
  6. Venezuela
  7. Yemen
  8. Somalia

As stated, the restrictions are not uniform for all the above countries.  The following table lays out what restrictions are placed on immigrant and non-immigrant visas for each country:

Country Non-Immigrant Visas Immigrant Visas
Chad No B-1, B-2 or B-1/B-2 visas No Immigrant or diversity lottery visas

 

Iran No non-immigrant visas except the F, M and J student visas No Immigrant or diversity visas

 

 

Libya No B-1, B-2 or B-1/B-2 visas No Immigrant or diversity lottery visas

 

North Korea No nonimmigrant visas No Immigrant or diversity lottery visas

 

Syria No nonimmigrant visas No Immigrant or diversity lottery visas

 

Venezuela No B-1, B-2 or B-1/B-2 visas of any kind for officials of the following government agencies: Ministry of Interior, Justice, and Peace; the Administrative Service of Identification, Migration and Immigration; the Corps of Scientific Investigations, Judicial and Criminal; the Bolivarian Intelligence Service; and, the People’s Power Ministry of Foreign Affairs, and their immediate family members.

 

No Restrictions

 

Yemen No B-1, B-2 or B-1/B-2 visas No Immigrant or diversity lottery visas

 

Somalia No nonimmigrant visas No Immigrant or diversity lottery visas

 

Dual Nationals:  Dual nationals can still travel and get visas based upon another nationality besides the ones listed above (So, for example, a national of both Iran and Canada can still get any nonimmigrant visa or immigrant visa based upon their Canadian Nationality).

Those in the US at the time the travel ban takes effect:  They are not affected by the travel ban as they are already in the US.

Those Outside the US with valid visas:  Exempt from the restrictions

Permanent Residents of the US:  These people are exempt from the Travel Ban

There are other certain exemptions as well, please make an appointment if you feel you may be affected by the travel ban and we can review the waivers and exemptions with you.

When will the Ban take effect?

From 3:30 pm on September 24, 2017, until 12:01 am on October 18, 2017, Nationals of Iran, Libya, Syria Yemen and Somalia will remain under the previous Travel Ban (i.e. only those with close family ties can get visas).  Sudanese national will no longer be subject to any ban as of that date and time.

From 12:01 am on October 18, 2017, forward the above travel restrictions will be in force and will replace the previous Executive Order Travel Ban.

If you feel you may be affected by the new travel ban, please do call our office.  We can assess your case and let you know if the travel ban does affect you, and if you are eligible for any of the waiver/exemptions.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

Supreme Court partially lifts Travel Ban Injunction

images-1Today the Supreme Court agreed to hear an appeal from the US Government arguing that the injunction placed on the Executive Order that banned travel from 6 majority muslim countries was should be lifted.  In agreeing to take the case, the Supreme Court also looked at whether the current temporary injunction should stay in effect.  The Court determined that the injunction on the travel ban and the refugee ban should stay in effect insofar as it affected people who were similarly situated as the Plaintiff’s in the case – that is to say foreigners with familial or other ties to the US (through organizations or companies).  However the Supreme Court lifted the injunction (allowing the travel ban to be put into place) for everyone else, that is to say those with NO such ties to the US.  Why did the Court lift the ban in certain cases? Basically, the Court weighted the harm to persons affected by the travel ban and refugee ban with the interests of our Government as described by the current administration.  The Court agreed with the lower Courts that the interests of the Plaintiff’s and those similarly situated to the Plaintiff’s, outweighed the interests of the Government.  But for those with no ties to the US, the Court found that the interest of our Government outweighed the interests of those individuals.

I think that there are two additional questions to ask here:  First, what does the above mean and how will it be implemented?  The second question is, does this ruling allow for any indication of how the Court will rule on the injunction itself?

To answer the first question, it is a little hard to say how the Department of Homeland Security will read the decision, however it appears that the Court only meant to narrowly lift the injunction.  Anyone who has relatives in the US or a job in the US, or a job offer, or other relationship with an organization or business in the US is still covered by the injunction.  It is only those people who have no relationship with any person or organization for whom the Ban can now be put into place.  This is a narrowly drawn exception to the injunction currently in place, and many people will not be covered by the Travel Ban.

In terms of whether or not this tips the hand of the Court in terms of  how they may rule on the case when it comes before them, I think it shows that a majority of the Court will, most likely, uphold the injunction.  But this is just my opinion, and we will have to see what happens.

Lastly, for those who are from one of the six named countries, please, please, please, call your immigration attorney before traveling outside the US so that they can discuss any potential issues with you.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

TSA Bans Most Electronics on Certain Flights to USA

Unknown.jpegThe Transportation Safety Administration. last week,  stated that certain electronics will NOT be allowed on board airplanes in carry-on luggage and must be checked on direct flights from certain airports to the US.

Specifically, the following airports are included in the TSA rule:

These enhancements apply to 10 specific airports. The affected overseas airports are: Queen Alia International Airport (AMM), Cairo International Airport (CAI), Ataturk International Airport (IST), King Abdul-Aziz International Airport (JED), King Khalid International Airport (RUH), Kuwait International Airport (KWI), Mohammed V Airport (CMN), Hamad International Airport (DOH), Dubai International Airport (DXB), and Abu Dhabi International Airport (AUH).

The following is the TSA description of what is not allowed:

Electronic devices larger than a cell phone/smart phone will not be allowed to be carried onboard the aircraft in carry-on luggage or other accessible property. Electronic devices that exceed this size limit must be secured in checked luggage. Necessary medical devices will be allowed to remain in a passenger’s possession after they are screened.

The approximate size of a commonly available smartphone is considered to be a guideline for passengers. Examples of large electronic devices that will not be allowed in the cabin on affected flights include, but are not limited to:

  • Laptops
  • Tablets
  • E-Readers
  • Cameras
  • Portable DVD players
  • Electronic game units larger than a smartphone
  • Travel printers/scanners

It should be noted that Great Britain has also passed a similar law.  Direct Flights from Egypt, Turkey, Saudi Arabia and Tunisia are affected by the Great Britain ban.  In addition, they define the electronics ban as including any electronics bigger than 6.3×3.6x.6.

We will update you if we receive any additional information about the electronics ban.  Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.