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Congressional negotiations on federal spending for the remainder of FY 2019 remain very active. If Congress and the President can’t come to an agreement on a spending bill or continuing resolution by midnight Friday, December 21, 2018, approximately 25 percent of government functions will shut down. Such a shut down 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 the Department of Homeland Security and its immigration-related components (CBP, ICE, USCIS, CIS Ombudsman), the Department of Justice (EOIR), and the Department of State. However, unlike years past, the Department of Labor (DOL) would not be impacted by a government shut down because on September 28, 2018, President Trump signed a minibus appropriations bill funding DOL through the end of September 30, 2019.

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.

Generally, if the government shuts for budgetary reasons, all but “essential” personnel are furloughed and are not allowed to work.

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 shut down.  Although USCIS has not yet confirmed how cases will be processed post-shut down, 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 due to a federal shut down.  Federal contractors are recommended to contact their contracting officers to confirm time frames.  Employers must still complete the Form I-9 on a timely basis.

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 shut down; however, processing delays are likely, as a certain portion of the staff will be furloughed.  Note, however, that myE-Verify services would be unavailable, including myE-Verify accounts, Self Check, Self Lock, Case History, and Case Tracker. 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 shut down.

Department of Labor

The Department of Labor (DOL) will continue normal operations as it has been funded through the end of September 30, 2019 by a minibus appropriations bill.

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, however, there may be delays or other issues with the adjudication of applications/petitions for visa status that are normally processed at the border.

The Department of State

The Department of State’s Visa and passport operations are fee-funded and should not be impacted, however, consular operations may be limited.  It is expected that U.S. Consulates abroad will continue to process visa applications for a limited period, 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 shut down.  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 shut down, in the past, it has stopped acceptance or processing of Social Security Number (SSN) applications during the shut down.  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 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 shut down 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 shut down.

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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.

In April 2018, U.S. Attorney General Jeff Sessions announced a “zero-tolerance policy” administered by CBP and ICE to criminally prosecute every adult who illegally crossed the border, or tried to do so, including asylum seekers attempting to enter between ports of entry. As part of implementing this policy, the Trump Administration stepped up efforts to separate parents from children at the border in unprecedented numbers never before seen as a deterrent policy to preventing asylum seekers from arriving at the borders. Parents were placed in separate detention facilities facing federal criminal charges for illegal entry and illegal reentry while the children were placed into the custody of the US Department of Health Human Services (DHHS) and its sub-agency, the Office of Refugee Resettlement (ORR). From there, the children were moved to various shelters and licensed facilities across the nation.

The White House - Washington D.C.
Copyright: pigprox / 123RF Stock Photo

There was no indication in the Trump Administration policy that children would be reunited with their parents after the criminal prosecutions. This policy of separating asylum seeking families runs directly counter to US and international humanitarian and asylum law. Many immigration lawyers, advocates, and leaders in the various local communities, including myself, immediately took to public media criticizing the legality of these practices and expressing moral outrage over these inhumane family separation policies.  Over the course of the next 6 weeks, the unpopularity of the Trump Administration’s immigrant family separation policy rose to an uproar with many sectors of American society speaking out against Trump’s family separation policy.

As a result, on June 20, 2018, President Donald Trump bent to public pressure and signed an executive order, indicating that it is a new policy of the Trump Administration to keep families arriving at the border detained together for an indefinite time period.() The family separation executive order calls for the opening of ad hoc detention facilities and even military bases to be used to house “alien families” together. At the same time, the Executive Order indicates that it will continue to enforce the zero tolerance policy of criminally prosecuting the parents.

Government officials report that approximately 2300 children have been separated from their parents since April 2018 under the zero tolerance policy. At this time, children already in the custody of DHHS and ORR will be processed under prior procedure of releasing children to a qualifying sponsor including another close relative or another parent if not simultaneously detained. There is no clear indication how the Executive Order will be implemented nor how families will be reunited.

There are a number of significant hurdles in how immigration cases are processed as well as limits on federal immigration custody that could prevent the children’s reunification with their parents long-term and/or even permanently. Going back more than 30 years, multiple different US Federal Courts have ruled on the immigration detention of children. In 1993, the US Supreme Court granted certiorari/appellate review in the landmark case of Flores v. Reno in order to address the federal detention of immigrant children. In 1997, the US government and plaintiffs in that case reached a consent decree settlement which set guidelines to protect unaccompanied minor children from unlawful mistreatment while held in federal custody. Collectively known as the Flores Settlement Agreement, these holdings evolved over time and also eventually became codified into US regulations.

In 2014, the Ninth Circuit Court of Appeals in California ruled that the Flores Settlement Agreement covered not just unaccompanied minor children but also expanded it to cover children accompanied by their migrant families as well. It also set a general standard that children cannot be kept in federal detention facilities for more than 20 days at a time due to the physical and mental health ramifications of prolonged detention on children.  In attempting to implement his Executive Order and open the door to permit long-term family detention, Trump will hit significant legal barriers in trying to overturn these historical binding case law precedents passed to protect immigrant children from that very thing, prolonged detention.

Children will also not be released to parents who are not bond eligible and remain in detention to pursue their family’s asylum cases taking upwards of a year.  When short-term parental reunification is not possible due to parental detention and/or inability to locate the parents or vice versa, ORR will be forced to determine what is “in the best interests” of the child.  That could mean filing local state family court guardianship petitions to declare the children permanent wards of the state under the appearance that it looks like the children were abandoned by the parents due to the parents’ unintentional absences while stuck in ICE detention and/or deported abroad. Children who were separated from their parents at the border were given different non-sequential  9 digit alien numbers (A file numbers) as opposed to immigrant families processed as family units.  An alien number is similar to an immigrant’s social security number. It is how immigrants undergoing immigration court proceedings are tracked.  Trying to track a separated missing child with a non-sequential alien number would be worse than finding a needle in a haystack even for ICE officials.

There are currently extremely long immigration court backlogs spanning the course of approximately 3-5 years. Immigration courts process juveniles on different dockets from adult and family unit dockets.  Even if parents elect to quickly give up and take voluntary departure/ removal orders in order to attempt to expedite reunification with their children, that does not mean that the children could do the same. Parents could find themselves stuck outside the US waiting years for reunification with their children while the children’s juvenile immigration court proceedings drag on in the United States.

Kristen Schneck is a partner in Fox’s Immigration Practice Group, based in Pittsburgh. She focuses her practice on removal and asylum matters.

Today, January 8, 2018, the Secretary of Homeland Security, Kirstjen M. Nielsen, announced her determination that termination of the Temporary Protected Status (TPS) designation for El Salvador was required pursuant to the Immigration and Nationality Act.  To allow for an orderly transition, she has determined to delay the termination for 18 months, which means the designation will terminate on Sept. 9, 2019.

According to the notification published today, the Department of Homeland Security (DHS) states that the decision to terminate TPS for El Salvador was made after a review of the disaster-related conditions upon which the country’s original designation was based and an assessment of whether those originating conditions continue to exist as required by statute.  The notice explains that the Secretary determined that the original conditions caused by the 2001 earthquakes no longer exist and, therefore, under the applicable statute, the current TPS designation must be terminated.

The Department of Homeland Security conducted extensive outreach to Salvadoran communities throughout the country and made its decision based upon careful consideration of available information, including recommendations received as part of an inter-agency consultation process.  This includes, but is not limited to, community forums on TPS, panel discussions with Salvadoran community organizers, stakeholder teleconferences, regular meetings with TPS beneficiaries, news releases to the Salvadoran community, meetings with Salvadoran government officials, meetings at local churches, and listening sessions.  The Secretary met recently with the El Salvadorian Foreign Minister and Ambassador to the United States, and spoke with President Sánchez Cerén.

Following the 2001 earthquake, Salvadorians were granted Temporary Protected Status (TPS), which has been renewed every 18 months since then.  According to the DHS, many reconstruction projects in El Salvador have now been completed, including the rebuilding or repair of schools, hospitals and homes damaged by the earthquakes, and money has been provided for water and sanitation and to repair earthquake damaged roads and other infrastructure such that that substantial disruption of living conditions caused by the earthquake no longer exist. The DHS statement also noted that the U.S. government has deported more than 39,000 Salvadorans in the past two years, demonstrating, it said, “that the temporary inability of El Salvador to adequately return their nationals after the earthquake has been addressed.”

To allow for an orderly transition, the effective date of the termination of TPS for El Salvador will be delayed 18 months (until September 19, 2019) to provide time for individuals with TPS to arrange for their departure or to seek an alternative lawful immigration status in the United States, if eligible.

Estimates differ for exactly how many immigrants the decision will affect. DHS officials said 262,500 Salvadorans have been granted TPS permits, but activists and experts have put the number of Salvadorans who could lose protections closer to 200,000, noting that official statistics likely include people who are no longer in the program because their immigration status has changed or they have left the United States. Immigrant advocates, Salvadoran government officials and many others had implored Nielsen to extend the TPS designation, citing the country’s horrific gang violence and the potentially destabilizing effect of so many people being sent home. Others urged her to consider the approximately 190,000 U.S.-born children of Salvadoran TPS recipients. Their parents must now decide whether to break up their families, take their entire families back to El Salvador, or stay in the United States and risk deportation.

Senior DHS officials told reporters Monday that the families would have to make that decision, and that the effect on American businesses, among other potential consequences of the TPS decision, were not part of Nielsen’s decision-making process. DHS state that it is up to Congress to determine a remedy.  “Only Congress can legislate a permanent solution addressing the lack of an enduring lawful immigration status of those currently protected by TPS who have lived and worked in the United States for many years,” the DHS statement read. “The 18-month delayed termination will allow Congress time to craft a potential legislative solution.”

Trump administration officials have repeatedly said they considered the TPS program an example of American immigration policy gone awry, noting that when Congress created the designation in 1990, its purpose was to provide “temporary” protection from deportation following a natural disaster, armed conflict or other calamity.

Salvadorans with TPS will be required to re-register for TPS and apply for Employment Authorization Documents in order to legally work in the United States until the termination of El Salvador’s TPS designation becomes effective on Sept. 9, 2019.  The re-registration period is announced through a Federal Register notice.

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 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.

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.

On Tuesday, April 18, 2017, President Donald Trump signed a new Executive Order, “Buy American and Hire American.” The new Order states that its first purposes is to focus on conducting studies and putting forth plans for federal agencies to immediately maximize the use and procurement of materials and products made in the U.S. (“Buy American”).

The second stated purpose of the Order focuses on a review of current immigration policies and regulations, specifically at H-1B visa program, and non-immigrant visa categories (for skilled foreign national workers) (“Hire American”).

The Order also directs government agencies to tighten up on visa fraud and abuse in the particulate with the H-1B visa program. The Order also directs that the government will fully prioritize the use of American companies and goods in federal projects.

The government has reported that 199,000 H-1B applications were submitted for the 2018 fiscal year, according to data from the U.S. Citizenship and Immigration Services, compared with the 236,000 H-1B cap petitions filed during the prior year.

In an interview earlier today with Snap On’s CEO, Nicholas Pinchuk, who said in a statement “The upskilling of the American workforce is the seminal issue of our time. We must refocus on technical education, restore our respect for the dignity of work, and celebrate technical jobs not as the consolation prize of our society, but as what they really are — a national calling essential to our ongoing prosperity.”

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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 Trump Administration issued a revised Executive Order on travel with an apparent desire to survive a court challenge by modifying some of the elements that judges found troubling in the January 27 travel ban.

The White House - Washington D.C.
Copyright: pigprox / 123RF Stock Photo

Issued March 6, the new ban, captioned “Executive Order Protecting The Nation From Foreign Terrorist Entry Into The United States,” has an effective date of Thursday, March 16 — allowing a 10-day window for foreign nationals, federal agencies and others to prepare for the changes.

The Executive Order imposes a 90-day “temporary pause” on entry into the United States by nationals of Iran, Libya, Somalia, Sudan, Syria and Yemen. Notably, Iraq has been removed from the list, but “additional scrutiny” measures in the new ban will apply to those from Iraq.

Subject to certain “categorical exceptions and case-by-case waivers,” the new travel ban is narrower than the previous broad-sweeping measure and applies only to those from the listed countries who:

  • are outside the United States on the effective date, Thursday March 16
  • did not have a valid visa by 5 p.m. (U.S. EST) on Jan. 27, 2017
  • do not have a valid visa on Thursday, March 16.

Exceptions Recognized

In contrast to the prior Executive Order on travel (Executive Order 13769, Protecting the Nation From Foreign Terrorist Entry into the United States), which this new Order revokes as of March 16, the revised ban also recognizes six categories of individuals from the listed countries:

  • Lawful permanent U.S. residents
  • Any foreign national admitted to or paroled into the U.S. on or after the effective date, Thursday, March 16
  • Any foreign national who has a document (other than a visa) that is valid on or issued on any date after the effective date, that permits the holder to travel to, and seek entry or admission to, the US such as an advance parole travel document
  • Any dual national of one of the six countries when travelling on a passport issued by a non-designated country
  • Any foreign national travelling on a diplomatic-type visa, NATO visa, C-2 for UN travel, or G-1 – G-4 visa
  • Any foreign national who has been granted asylum, any refugee already admitted to the United States, or any individual who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture.

Presumably, these exceptions will reduce concern by the larger group of travelers, including nationals of countries not listed in the Executive Order. Yet, the new Executive Order leaves open the possibility that restrictions may be imposed on nationals of additional countries at some point in the future.

Additional highlights of the Order include:

  • A call for enhanced vetting procedures during the adjudications process
  • 120-day suspension of the US Refugee Admissions Program for FY 2017, subject to waivers, and with a call for enhanced vetting
  • Expedited completion of the biometric entry-exit tracking system
  • Suspension of the “visa interview waiver program”
  • A review of visa reciprocity agreements
  • Making certain data available to the public
  • Clarifications regarding visa revocations, and more

On February 3, 2017, a Seattle federal court judge granted Washington State and Minnesota’s emergency motion for a temporary restraining order (TRO) in its challenge to President Trump’s Executive Order (EO) on “Protecting the Nation from Terrorist Attacks by Foreign Nationals.”

In accordance with the court ruling, the Department of Homeland Security (DHS) has suspended any and all actions implementing the affected sections of the EO, including actions to suspend passenger system rules that flag travelers for operational action subject to the EO. DHS personnel will resume inspection of travelers in accordance with standard policy and procedure. Further, the Department of State (DOS) has lifted the provisional revocation of valid visas of nationals of Syria, Iraq, Iran, Libya, Somalia, Sudan, and Yemen.

According to DOS, those visas are now valid for travel to the United States may travel if the holder is otherwise eligible. However, DOS also stated that “individuals whose visas are expired or were physically cancelled, must apply for a new visa at the a U.S. embassy or consulate, absent a Customs and Border Patrol (CBP) decision to grant parole or waive the visa requirement at the port of entry”. DOS has also resumed processing those immigrant and non-immigrant visa applications that were halted by the EO.

All CBP Field Offices have been instructed to immediately resume inspection of travelers under standard policies and procedures, and that all airlines and terminal operators have been notified to permit boarding of all passengers without regard to nationality.

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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.

It’s hard to write about the immigration consequences of the election in a non-political way.  Campaign rhetoric makes millions of immigrants and millions more citizens anxious.  The immigrants include people who are undocumented and those who are documented, new arrivals, longtime residents and prospective immigrants to the US.  Most of the immigration-related campaign themes of President-elect Donald Trump concern undocumented and criminal immigrants, refugees and potential terrorists…not employment-based immigration for documented immigrants.   “Building a wall” is both literal and figurative.  A physical wall or fence on our 2000+ mile long border with Mexico and trebling the Border patrol would make unlawful entry across that border more difficult, even though out-migration of Mexicans currently exceeds in-migration. Extreme vetting of refugees, which we already have, could prevent “that one person” from coming who has terrorist ideas while leaving thousands of victims of terrorism in refugee camps outside of their homeland. Deporting criminal immigrants, which the Obama administration pursued more aggressively than any other, is already being done.

Do these have a direct effect on legal, employment based immigration?  Not really.

Congress could change the law that underpins our legal immigration system to make it more restrictive and to limit the number of immigrants admitted for temporary or permanent employment.  Executive action that gave employment authorization to about 800,000 “dreamers”, kids who were brought to the US illegally as minors by family members, could be repealed.  Proposed administrative changes giving parole to entrepreneurs with capital seeking to start new businesses could be delayed indefinitely.

Employment-based immigration could be changed dramatically, but that was not a campaign theme.  Enforcement was.  Employers need to be cautious that their work force is composed of workers authorized to work in the US.  Employers need to make sure that their I-9 processes and forms are in order (and should also be aware that a new Form I-9 will become effective on January 22, 2017).  While immigration raids haven’t been employed since early in the Bush Administration, the theme of enforcement is likely to make inspections and fines more prevalent and more expensive.

The election was only one week ago.  There may be dramatic changes in immigration law and policy; maybe not.  People who have been procrastinating their filing of naturalization are filing now.  Many people seeking immigration benefits will be pushing to file before January 20th.  Employers with sloppy I-9s or a questionable work force would be wise to clean up. As the Trump administration makes good on some of its immigration pledges, we will be vigilant in following those changes.  For now, business as usual – except for the anxiety.