General Immigration News and Updates

U.S. Capitol Building, Washington, D.C.The EB-5 Program has been extended through December 22, 2017.  The Program was extended as part of a continuing resolution (CR) funding the federal government through December 22, 2017, thus preventing a government shutdown.

There are no changes to any federal programs with this two-week extension which is welcome news for EB-5 industry stakeholders.

If Congress cannot resolve FY2018 funding issues by December 8, 2017, it will result in another federal government shutdown. Such a shutdown will impact immigration services across a number of different government agencies, affecting many of the systems and processes employers rely on to facilitate employment, including E-Verify, visa petition processing, labor certifications and other government services that corporations and individuals rely upon.

We will closely monitor the circumstances and provide updates as they become available. Individuals with pending applications or who are planning to travel abroad to secure a visa should consult with their Fox Rothschild immigration attorney, prior to travel.

E-Verify

E-Verify, the Internet-based system that allows employers to determine the eligibility of prospective employees to work in the United States, would be unavailable during a shutdown. Although employers must still complete the Form I-9 on a timely basis, in the past, U.S. Department of Homeland Security has suspended E-Verify’s 3-day rule and extended the time for responding to Tentative Non-Confirmations. Federal contractors are recommended to contact their contracting officers to confirm time frames.

U.S. Citizenship and Immigration Services

As a fee-based agency, U.S. Citizenship and Immigration Services (USCIS) will continue to process applications and petitions for immigration benefits during the shutdown; however, processing delays are likely, as a certain portion of the staff will be furloughed. Further, delays may occur if adjudication of a petition/application is dependent on support from nonessential government functions that are suspended during the shutdown—for example, if a petition requires a certified Labor Condition Application (LCA) from the Department of Labor (DOL).

In the past, USCIS has relaxed its rules and accepted H-1B filings without certified LCAs when DOL operations have been suspended or delayed, however, USCIS has not yet announced whether it will do so during the current shutdown.

Department of Labor

The Department of Labor (DOL) will suspend all immigration-related functions during a shutdown, affecting PERM Labor Certifications and Labor Condition Applications. Filed and pending applications will not be processed, nor will filings be accepted during a shutdown.

U.S. Customs and Border Protection

The majority of the Department of Homeland Security’s U.S. Customs and Border Protection’s (CBP’s) employees are expected to stay on the job at the borders and ports of entry. CBP is deemed an essential function and will likely continue operations at near normal capacity, including the adjudication of applications/petitions for TN and L-1 status that are normally processed at the border.

The Department of State

In the past, The Department of State’s (DOS’s) consular operations have remained operational, although services may be limited. It is expected that U.S. Consulates abroad will continue to process visa applications as long as funds are available. This funding is expected to last only for a few days, at which point the State Department will likely cease processing visas and focus solely on diplomatic services and emergency services for American citizens.

The Bureau of Consular Affairs/Passport Office U.S. Passports

The Bureau of Consular Affairs is a fee-based agency; therefore, the Passport Office should continue to operate normally during a shutdown. However, some those passport offices that are located in federal buildings, which themselves may have to shut down, restricting access to those passport offices.

Social Security Administration

While The Social Security Administration (SSA) is expected to remain open during a shutdown, it will not accept or processing Social Security Number (SSN) applications. Although an employee may begin work without a social security number, the lack of an SSN could affect the individual’s ability to secure a U.S. driver’s license, open a bank account, secure credit or obtain other benefits.

State Department of Motor Vehicle Agencies

Although driver’s license and state identification cards are issued by state governments, applications by foreign nationals could be delayed during the shutdown because local agencies must access a federal database to verify the foreign national’s immigration status before it may issue a driver’s license or identification card. This database, known as SAVE, could be suspended during a shutdown.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP.  Alka is situated in Fox Rothschild’s Morristown, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

 

On May 1, 2017, the U.S. Citizenship and Immigration Services began issuing redesigned versions of the Permanent Resident Card (aka a “Green Card”) and the Employment Authorization Document (EAD) as part of the Next Generation Secure Identification Document Project.

The redesigned cards use enhanced graphics and fraud-resistant security features to create cards that are highly secure and more tamper-resistant than the ones currently in use.

USCIS states that the new card designs are part of an ongoing effort between USCIS, U.S. Customs and Border Protection, and U.S. Immigration and Customs Enforcement to enhance document security and deter counterfeiting and f raud and demonstrate USCIS’ commitment to continue taking a proactive approach against the threat of document tampering and fraud.

The new Permanent Resident and EAD Cards will:

  • Display the individual’s photos on both sides;
  • Show a unique graphic image and color palette:
  • Have embedded holographic images; and
  • No longer display the individual’s signature.
  • EAD cards will have an image of a bald eagle and a predominately red palette;
  • Permanent Resident Cards will have an image of the Statue of Liberty and a predominately green palette;
  • Permanent Resident Cards will no longer have an optical stripe on the back.

Some Permanent Resident Cards and EADs issued after May 1, 2017, may still display the existing design format as USCIS will continue using existing card stock until current supplies are depleted. Both the existing and the new Permanent Resident Cards and EADs will remain valid until the expiration date shown on the card. Additionally, older Permanent Resident Cards without an expiration date also remain valid. USCIS continues to encourage individuals who have Permanent Resident Cards without an expiration date to consider applying for a replacement card bearing an expiration date in order to reduce the likelihood of fraud or tampering if the card is ever lost or stolen, but have not mandated that they must do so.

The M-274 Handbook for Employers for Completing Form I-9 (Employment Eligibility Verification Form) was updated in July 2017 to depict the design of the new cards and those several still valid versions.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Morristown, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

The US Citizenship and Immigration Service (USCIS) announced today, September 18, 2017, that it will again expand its resumption of premium processing for additional types of H-1B petitions.

Effective immediately, H-1B petitions subject to the Fiscal Year 2018 cap are eligible for premium processing.  This includes petitions under the 65,000 cap and the 20,000 additional petitions for beneficiaries with a US master’s or higher degree.  Readers may recall that the FY 2018 cap was reached in April 2017.  Those pending filings that were selected in the H-1B lottery, which generally have October 1, 2017 start dates, are the ones that are included under this expanded resumption of premium processing.  This is indeed welcome news for both the petitioning employers and beneficiaries who may now achieve decisions that could allow the H-1B employment to begin on or shortly after the anticipated start date.

Today’s expansion of premium processing is in addition to two prior resumptions of premium processing which included:

  • H-1B petitioners who are exempt from the H-1B cap as:
    • An institution of higher education,
    • A nonprofit related to or affiliated with an institution of higher education, or
    • A nonprofit research or governmental research organization.
  • H-1B  petitions that are exempt because the beneficiary will be employed at a qualifying cap-exempt institution, organization or entity.
  • H-1B petitions for physicians under the Conrad 30 or an IGA (interested government agency) waiver program, and

For now, USCIS continues its temporary suspension of premium processing for all other H-1B petitions including but not limited to extensions of stay.

The Agency stated that it will continue to expand eligibility for premium processing for other types of H‑1B petitions as workloads permit.  You may recall that when USCIS announced in March 2017 that is was suspending premium processing for H-1B petitions, the agency said that it expected to resume premium processing of H-1B petitions in general by early October 2017.  This may yet be achieved.

In its announcement USCIS included a reminder that H-1B petitioners may request expedited processing based on specific criteria such as humanitarian need.

Until then, USCIS will continue to reject any Form I-907 Request for Premium Processing filed with non-eligible H-1B petitions.

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Catherine Wadhwani is a partner in the immigration practice at Fox Rothschild LLP.

On September 5, 2017, the Department of Homeland Security (DHS) U.S. Citizenship and Immigration Services (USCIS) officially rescinded the program known as Deferred Action for Childhood Arrivals (DACA) and implemented a six month phase out process. Pursuant to its official memorandum and FAQ, USCIS will allow current DACA recipients to keep their work authorization and deferred action status/benefits until they expire and take the following steps to end the DACA program:

  • Initial DACA Applications: USCIS will continue to adjudicate properly filed initial DACA requests and associated applications for work authorization that were accepted by USCIS as of September 5, 2017. However, USCIS will reject any initial DACA requests received after September 5, 2017.
  • Renewal DACA Applications: USCIS will continue to adjudicate renewal DACA applications and associated applications for work authorization that have been accepted by USCIS as of September 5, 2017. USCIS will also continue to accept renewal applications filed by DACA recipients whose benefits expire on or before March 5, 2018, until October 5, 2017. After October 5, 2017, USCIS will reject all DACA renewal requests.
  • Pending Applications for Advance Parole Based on DACA: Effective September 5, 2017, USCIS will no longer process or approve any DACA-based applications for Advance Parole (Forms I-131). Any pending applications for advance parole will be closed, and USCIS will return the filing fees to the applicant. Although DHS also stated that it will generally honor the validity period for previously approved applications for advance parole, the FAQs note that CBP retains the right to refuse admission to a person who presents themselves at a port of entry as a matter of discretion.
  • Current EADs that Are Lost, Stolen, or Destroyed: The DHS FAQs state that individuals can still apply to replace a valid EAD that has been lost, stolen, or destroyed.
  • Current Valid DACA EADs: Any individual with a currently valid DACA EAD can continue to work lawfully. DHS confirmed that it would not terminate or revoke previous approved DACA or EAD solely based on its decision to rescind the DACA program. However, if the applicant’s DACA status and EAD expires after March 5, 2018, they are not eligible for renewal.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

This may be the last chance to participate in the lottery.  Not the Powerball Lottery that recently topped $700,000,000, but the Diversity Lottery that will provide 50,000 immigrant visas in fiscal year 2019.  The Diversity Lottery (DV) is for immigrants from countries with historically low rates of immigration to the US.

Although the proposed RAISE Act would eliminate the DV program, at least for now it is still alive and well.  On September 7, 2017, the Department of State announced that beginning noon EST (GMT-4) on Tuesday October 3, 2017 people from qualifying countries may apply online to be lucky.  Natives of Brazil, China, Colombia, Mexico, Nigeria and Viet Nam and other nations may NOT apply as their historic rate of immigration has not been low.  Natives of all other countries may apply electronically and only electronically at the Department of States lottery portal: dvlottery.state.gov.  Beyond having been born in an eligible country, the applicant must meet a rather modest education/work experience requirement. As with any other application to the government there are other details.  A full description can be found at: https://travel.state.gov/content/visas/en/immigrate/diversity-visa/instructions.html

 Lottery applications are accepted until November 7, 2017 at noon EST (GMT-5) . Starting May 1, 2018 results will be available.  The application process is FREE and it is a true lottery.

 Applying for the lottery is not interpreted as “immigrant intent”. Those who are lucky may proceed to apply for permanent residency based on being a DV immigrant. So, you have to play to win…

 

On September 5, 2017, Attorney General Jeff Sessions announced the rescission of the program known as Deferred Action for Childhood Arrivals (DACA) pursuant to President Donald J. Trump’s decision to terminate DACA.  On the same day the Department of Homeland Security (DHS) U.S. Citizenship and Immigration Services (USCIS) issued an official memorandum outlining how it will wind down the program. Former President Barack Obama established the Deferred Action for Childhood Arrivals (DACA) Program (https://www.uscis.gov/archive/consideration-deferred-action-childhood-arrivals-daca) five years ago with an executive order that granted temporary lawful status and work authorization to certain undocumented immigrants who had been brought to the United States as children.

The USCIS Memorandum on the Rescission of DACA, states that in recognition of the complexities associated with winding down the program, that USCIS will provide a limited window in which it will adjudicate certain requests for DACA and associated applications meeting certain parameters (specified below) and effective immediately, USCIS:

    1. Will adjudicate—on an individual, case-by-case basis—properly filed pending DACA initial requests and associated applications for Employment Authorization Documents that have been accepted by USCIS as of the date of this memorandum.
    2. Will reject all DACA initial requests and associated applications for Employment Authorization Documents filed after September 5, 2017.
    3. Will adjudicate—on an individual, case by case basis—properly filed pending DACA renewal requests and associated applications for Employment Authorization Documents from current beneficiaries that have been accepted by the USCIS as of September 5, 2017, and from current beneficiaries whose benefits will expire between the date of this memorandum and March 5, 2018 that have been accepted by USCIS as of October 5, 2017.
    4. Will reject all DACA renewal requests and associated applications for Employment Authorization Documents filed outside of the parameters specified above.
    5. Will not terminate the grants of previously issued deferred action or revoke Employment Authorization Documents solely based on the directives in this memorandum for the remaining duration of their validity periods. [Emphasis added]
    6. Will not approve any new Form I-131 applications for advance parole under standards associated with the DACA program, although it will generally honor the stated validity period for previously approved applications for advance parole. Notwithstanding the continued validity of advance parole approvals previously granted, CBP will—of course—retain the authority it has always had and exercised in determining the admissibility of any person presenting at the border and the eligibility of such persons for parole. Further, USCIS will retain the authority to revoke or terminate an advance parole document at any time.
    7. Will administratively close all pending Form I-131 applications for advance parole filed under standards associated with the DACA program, and will refund all associated fees.
    8. Will continue to exercise its discretionary authority to terminate or deny deferred action at any time when immigration officials determine termination or denial of deferred action is appropriate.

On September 5, the Department of Homeland Security also posted an FAQ on the Rescission of DACA on its website confirming answers to several key questions:

(i)          What is going to happen to current DACA holders?

Current DACA recipients will be permitted to retain both the period of deferred action and their employment authorization documents (EADs) until they expire, unless terminated or revoked. DACA benefits are generally valid for two years from the date of issuance.

(ii)        What happens to individuals who currently have an initial DACA request pending?

Due to the anticipated costs and administrative burdens associated with rejecting all pending initial requests, USCIS will adjudicate—on an individual, case-by-case basis—all properly filed DACA initial requests and associated applications for EADs that have been accepted as of September 5, 2017.

(iii)       What happens to individuals who currently have a request for renewal of DACA pending?

Due to the anticipated costs and administrative burdens associated with rejecting all pending renewal requests, USCIS adjudicate—on an individual, case-by-case basis—properly filed pending DACA renewal requests and associated applications for Employment Authorization Documents from current beneficiaries that have been accepted as of September 5, 2017, and from current beneficiaries whose benefits will expire between September 5, 2017 and March 5, 2018 that have been accepted as of October 5, 2017.  USCIS will reject all requests to renew DACA and associated applications for EADs filed after October 5, 2017.

(iv)       Is there still time for current DACA recipients to file a request to renew their DACA?

USCIS will only accept renewal requests and associated applications for EADs for the class of individuals described above in the time period described above.

(v)         Will individuals with expired DACA be considered illegally present in the country?

Current law does not grant any legal status for the class of individuals who are current recipients of DACA. Recipients of DACA are currently unlawfully present in the U.S. with their removal deferred.  When their period of deferred action expires or is terminated, their removal will no longer be deferred and they will no longer be eligible for lawful employment. Only Congress has the authority to amend the existing immigration laws.

(vi)       Once an individual’s DACA expires, will their case be referred to ICE for enforcement purposes?

Information provided to USCIS in DACA requests will not be proactively provided to ICE and CBP for the purpose of immigration enforcement proceedings, unless the requestor meets the criteria for the issuance of a Notice To Appear or a referral to ICE under the criteria set forth in USCIS’ Notice to Appear guidance (www.uscis.gov/NTA). This policy, which may be modified, superseded, or rescinded at any time without notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable by law by any party in any administrative, civil, or criminal matter.

(vii)      Will USCIS share the personal information of individuals whose pending requests are denied proactively with ICE for enforcement purposes?

Generally, information provided in DACA requests will not be proactively provided to other law enforcement entities (including ICE and CBP) for the purpose of immigration enforcement proceedings unless the requestor poses a risk to national security or public safety, or meets the criteria for the issuance of a Notice To Appear or a referral to ICE under the criteria. This policy, which may be modified, superseded, or rescinded at any time without notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable by law by any party in any administrative, civil, or criminal matter.

(viii)    Can deferred action received pursuant to DACA be terminated before it expires?

Yes.  DACA is an exercise of deferred action which is a form of prosecutorial discretion. Hence, DHS will continue to exercise its discretionary authority to terminate or deny deferred action at any time when immigration officials determine termination or denial of deferred action is appropriate.

(ix)       Can DACA recipients whose valid EAD is lost, stolen, or destroyed request a new EAD during the phase out?

If an individual’s still-valid EAD is lost, stolen, or destroyed, they may request a replacement EAD by filing a new Form I-765.

(x)         Will DACA recipients still be able to travel outside of the United States while their DACA is valid?

Effective September 5, 2017, USCIS will no longer approve any new Form I-131 applications for advance parole under standards associated with the DACA program. Those with a current advance parole validity period from a previously-approved advance parole application will generally retain the benefit until it expires. However, CBP will retain the authority it has always exercised in determining the admissibility of any person presenting at the border. Further, USCIS retains the authority to revoke or terminate an advance parole document at any time.

The Department of Homeland Security reports that as of September 5, 2017:

  • From August through December 2017, 201,678 individuals are set to have their DACA/EADs expire. Of these individuals, 55,258 already have submitted requests for renewal of DACA to USCIS.
  • In calendar year 2018, 275,344 individuals are set to have their DACA/EADs expire. Of these 275,344 individuals, 7,271 have submitted requests for renewal to USCIS.
  • From January through August 2019, 321,920 individuals are set to have their DACA/EADs expire. Of these 321,920 individuals, eight have submitted requests for renewal of DACA to USCIS.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

The US Citizenship and Immigration Service (USCIS) announced today, July 24, 2017, that it will again expand its resumption of premium processing for certain types of H-1B petitions.

Effective immediately, H-1B petitioners who are (or have a sound argument that they are) exempt from the H-1B cap, are eligible to request premium processing.  This includes petitioners that are:

  • An institution of higher education,
  • A nonprofit related to or affiliated with an institution of higher education, or
  • A nonprofit research or governmental research organization.

In addition, USCIS stated that it will resume premium processing for petitions that may be exempt “if the beneficiary will be employed at a qualifying cap-exempt institution, organization or entity.”

This welcome news comes about a month after USCIS resumed premium processing of H-1B petitions for physicians under Interested Government Agency (IGA) J-1 waiver programs such as the Conrad 30 waiver program for shortage area physicians.  Employer’s petitioning for H-1B status for IGA-Waivered physicians became eligible for premium processing on Monday, June 26, 2017.

You may recall that when USCIS announced in March 2017 that is was suspending premium processing for H-1B petitions, the agency said that it expected to resume premium processing of H-1B petitions in general by early October 2017.  In today’s announcement, USCIS indicated that it will further “resume premium processing of other H-1B petitions as workloads permit.”  So it appears that USCIS is on its way toward meeting the October time-frame.

Until then, USCIS will continue to reject any Form I-907 Request for Premium Processing filed with non-eligible H-1B petitions.  Petitioners who aren’t eligible for premium processing, may of course, seek expedited processing based on such things as humanitarian reasons.

Every year, the ABA Journal invites nominations for its Blawg 100 list, a compilation of staff and reader “favorites” within the legal blogosphere. The rigorous selection process for the 2017 list has begun, with the magazine calling for recommendations from “Blawg Amici” – regular readers who wish to support and spread the word about their favorite legal blogs.

Here’s a sampling of posts from the past year:

If you have enjoyed and valued our updates during the past year and believe the Immigration View blog deserves a spot in the top 100, we invite you to take a few moments to nominate us. Our goal is provide crucial updates and valuable information on the U.S. immigration landscape. The online nomination process is very quick – it shouldn’t take more than a minute or so.

Blawg Amici nominations will be accepted until 11:59 p.m. CT on July 30, 2017. Thank you in advance for your support!

On 6/26/17, the Supreme Court granted certiorari, consolidated the 4th and 9th Circuit cases, partially lifted the lower court injunctions, permitting the government to ban U.S. travel by those nationals of Iran, Libya, Somalia, Sudan, Syria and Yemen who do not have a credible claim of a bona fide relationship with a person or entity in the U.S., even though the Supreme Court will hear the merits of the case when it reconvenes in the fall.

Immediately after the court’s decision, the Department of State (DOS) and the Department of Homeland Security (DHS) both issued Frequently Asked Questions (FAQs) regarding the implementation of Executive Order on June 29, 2017. Here is the summary.

Summary of DOS Cable and FAQs Regarding Implementation of EO-2

  • Individuals Subject to the Suspension of Entry: Foreign nationals from the six designated countries (Sudan, Syria, Iran, Libya, Somalia, and Yemen) who were outside the United States as of June 26, 2017; who did not have a valid visa at 5:00 p.m. Eastern Standard Time on January 27, 2017; and who did not have a valid visa as of 8:00 p.m. Eastern Daylight Time on June 29, 2017, are subject to EO-2.
  • Individuals exempt from the order:
    • Any applicant who has a credible claim of a “bona fide relationship” with a person or entity in the United States.
      • Any such relationship with a “person” must be a close familial relationship, as defined below.
      • Any relationship with an entity must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading EO 103780.
      • Eligible derivatives of principal visa applicants who are either deemed to be exempt from the EO’s suspension of entry or qualify for a waiver under the EO also receive the benefit of the exemption or waiver.
    • Any applicant who was in the United States on June 26, 2017;
    • Any applicant who had a valid visa at 5:00 p.m. EST on January 27, 2017, the day Executive Order 13769 was signed;
    • Any applicant who had a valid visa on June 29, 2017;
    • Any lawful permanent resident (LPR) of the United States;
    • Any applicant who is admitted to or paroled into the United States on or after June 26, 2017;
    • Any applicant who has a document other than a visa, valid on June 29, 2017, or issued on any date thereafter, that permits him or her to travel to the United States and seek entry or admission, such as advance parole.
  • Bona Fide Relationship With a Person in the U.S. – DOS defines a close family member as a parent (including parent-in-law), spouse, fiancé, child, adult son or daughter, son-in-law, daughter-in-law, or whole or half sibling (including step relationships). However, it does not include a grandparent, grandchild, aunt, uncle, niece, nephew, cousin, brother-in-law, sister-in-law, and any other “extended” family members.
  • Bona Fide Relationship with an Entity in the U.S.: The DOS cable provides the following examples of a “bona fide relationship” to a U.S. entity that will qualify:
    • An I visa applicant employed by foreign media that has a news office based in the U.S.;
    • Students from designated countries who have been admitted to U.S. educational institutions;
    • A worker who has accepted an offer of employment from a company in the U.S.; or
    • Lecturer invited to address an audience in the U.S.
    • The cable indicates that the following scenarios will not constitute a bona fide relationship with an entity in the U.S.:
    • A nonprofit group who seeks out clients from the designated countries, adds them to their client list, and then claims injury from their inclusion in the EO.
    • An individual whose only tie to the United States is a hotel reservation, whether paid or not.
  • Immigrant Visa Applicants: Certain self-petitioning employment-based immigrant visa applicants and diversity visa applicants may be covered by EO-2 and will need to establish they are exempt based on a bona fide relationship or qualify for a waiver.
  • Visa Revocation: DOS has confirmed that no visas issued before the EO’s effective date of June 29, 2017 will be revoked pursuant to the Executive Order. Any individual whose visa was marked or cancelled solely as a result of the original EO issued on January 27, 2017 (EO 13769) will be entitled to a travel document permitting travel to the U.S., so that the individual may seek entry. Any individual in this situation should contact the closest U.S. Consulate to request a travel document.
  • Visa Appointments at U.S. Consulates Abroad: Consulates will not cancel previously scheduled visa interview appointments and will continue to accept visa applications from foreign nationals from the designated countries. Consular officers will make a case-by-case determination on whether a foreign national is eligible for the requested visa classification before deciding whether he or she is exempt from EO-2. If not exempt, consular officers will determine whether the foreign national would qualify for a waiver. Consular officers can grant waivers on a case-by-case basis if the foreign national demonstrates that his or her entry into the U.S. is in the national interest and will not pose a threat to national security, and that denying the visa would cause undue hardship. If the principal applicant qualifies for an exemption or waiver, qualified derivatives would also get such benefit.
  • Waivers: Individuals who are not exempt from EO-2’s suspension of entry to the United States may seek a waiver. The EO permits, and the DOS further confirms, that Consular Officers are permitted to grant waivers and authorize the issuance of a visas on a case-by-case basis, if the applicant demonstrates to the Officer’s satisfaction that all of the following three criteria are met:
    • Denying entry under the 90-day suspension would cause undue hardship;
    • His or her entry would not pose a threat to national security; and
    • His or her entry would be in the national interest. “Unless the adjudicating consular officer has particular concerns about a case that causes the officer to believe that that issuance may not be in the national interest, a determination that a case falls under [any of EO-2’s criteria for when a waiver “could be appropriate”] is a sufficient basis for concluding a waiver is in the national interest. Determining that a case falls under some of these circumstances may also be a sufficient basis for concluding that denying entry during the 90-day suspension would cause undue hardship.”
    • Notably, Consular Officers are instructed to determine that if any individual falls under any of EO-2’s criteria for when a waiver “could be appropriate”, that individual should be granted a waiver. Specifically, the cable states:
  • Refugees: The U.S. Refugee Admissions Program (USRAP) is suspended for 120 days, except for cases where an applicant has a credible claim of a “bona fide relationship” with a person or entity in the United States. The “bona fide relationship” test set forth by the Supreme Court to establish whether one has a qualifying with a person or entity in the United States is the same for a refugee as it is for a nonimmigrant, immigrant, or diversity visa applicant.

Summary of DHS FAQs Regarding Implementation of EO-2

  • Foreign national from one of the six designated countries who was present in the U.S. on June 26, 2017, who was admitted on a single-entry or a multiple-entry visa will not be subject to EO-2 when applying for a subsequent visa.
  • Foreign national from one of the six designated countries who was present in the U.S. on June 26, 2017, but whose visa will expire during travel abroad, will not be subject to EO-2 when applying for a new visa in order to return to the U.S.
  • A U.S. lawful permanent resident who is a citizen of one of the designated countries and who is a member of the Trusted Traveler Program will not be subject to membership revocation based on the EO-2.
  • The EO does not apply to refugees who were formally scheduled for transit prior to 8pm EDT on Thursday, June 29, 2017.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Morristown, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.