Trump Signs New Executive Order on Travel

On Monday, March 6, 2017, the President signed a new Executive Order on immigration. This new Executive Order repeals the previous Executive Order of January 27, 2017 and replaces it with the following key provisions that will potentially impact our clients.

Travel
Today’s Executive Order will prohibit admission to the United States for a period of 90 days beginning March 16, 2017, citizens of the following six countries: Iran, Libya, Somalia, Sudan, Syria, and Yemen. Iraq, which was previously designated, has been removed from this list. This travel ban applies to individuals who are:

  • Outside of the U.S. on the effective date of the order (March 16, 2017),
  • Did not have a valid visa at 5:00 p.m. eastern standard time on January 27, 2017, and
  • Do not have a valid visa on the effective date of this order.

The order specifically exempts the following categories of people:

  • Lawful permanent residents of the United States;
  • Any foreign national who is admitted to or paroled into the United States on or after the effective date of this order;
  • Any foreign national holding a document other than a visa that is valid on the effective date of this order or issued at any time thereafter that permits travel to the U.S. (such as an advance parole document);
  • Any dual national of a country designated (Iran, Libya, Somalia, Sudan, Syria, and Yemen) who travels to the U.S. on their passport from a non-designated country;
  • Any foreign national who has been granted asylum, any refugee who has already been admitted to the United States, or anyone granted coverage under the Convention Against Torture; or
  • Anyone traveling on a diplomatic or diplomatic-type visa.

Waivers
This Executive Order provides for waivers to be decided by U.S. consular officers during the visa application process at U.S. consular posts abroad. It provides the same discretion to Customs and Border Protection officers interviewing applicants at a port of entry. The waivers will be decided on a case-by-case basis upon successful demonstration that denying entry would cause undue hardship, and that entry would not pose a threat to national security and would be in the national interest.

The categories under which one may apply for waiver are as follows:

  1. The applicant has previously been admitted to the United States for work, study, or other long-term activity, is outside the United States on the effective date of this order, seeks to re-enter the United States to resume that activity, and the denial of re-entry during the suspension period would impair that activity;
  2. The applicant has previously established significant contacts through entry to the United States but is outside the country on the effective date of this order for work, study, or other lawful activity;
  3. The applicant seeks to enter the United States for business or professional obligations and the denial of entry during the suspension period would impair those obligations;
  4. The applicant seeks to enter the United States to visit or reside with a spouse, child, or parent who is a United States citizen, lawful permanent resident, or alien lawfully admitted on a valid nonimmigrant visa, and the denial of entry during the suspension period would cause undue hardship;
  5. The applicant is an infant, a young child or adoptee, an individual needing urgent medical care, or someone whose entry is otherwise justified by the special circumstances of the case;
  6. The applicant has held employment with the United States Government (or is an eligible dependent of such an employee);
  7. The applicant is a landed Canadian immigrant who applies for a visa at a location within Canada;
  8. The applicant is traveling as a United States Government-sponsored exchange visitor; or
  9. The applicant is traveling for purposes related to an international organization designated under the International Organizations Immunities Act (IOIA), 22 U.S.C. 288 et seq., traveling for purposes of conducting meetings or business with the United States Government, or traveling to conduct business on behalf of an international organization not designated under the IOIA.

What this means for our clients: If you are currently traveling on a passport from one of the designated countries and are outside of the U.S., and if you have a valid visa that was issued prior to January 27, 2017, you should be able to continue your travel. If your visa was issued after January 27, 2017 and is currently valid, you should return to the U.S. as soon as possible and before March 16, 2017.

If you have questions about whether you are covered under this travel ban, please reach out to the attorney overseeing your case or Sam Adair (sadair@grahamadair.com) for advice on next steps.

Graham Adair is closely monitoring any new developments and we will release information as it becomes available. Please check back to our website for further updates and follow us on twitter @grahamadairlaw for real-time updates as they become available.

 

 

Graham Adair
March 2017

Big Changes in U.S. Immigration

Last night, President Obama announced some significant changes to U.S. immigration policy that will take effect in coming months.  Some of the items announced, such as suspending deportation proceedings for certain groups of people, will go into effect immediately.  Other aspects of the plan will require input from U.S. Citizenship and Immigration Services, the State Department, and Immigration and Customs Enforcement, among others, and will likely require changes to the current regulations.

 

The biggest takeaways, from a business immigration standpoint, from the President’s speech include:

1. ICE will work to “expand and extend the use of optional practical training (OPT) for foreign students.”

2. The USCIS will provide clearer guidance on adjustment of status (I-485) portability so that individuals with pending applications have greater career and job flexibility during the green card process.

3. The USCIS will look to provide EAD work cards and advance parole travel authorization to those who have approved I-140s with retrogressed priority dates.

4. The USCIS will allow H-4 spouses to seek Employment Authorization Documents if the H-1B holder is “on the path to lawful permanent resident status.”

5. The USCIS will issue more clear guidance with respect to what qualifies as “specialized knowledge” in the L-1B context in an effort to improve consistency and reinvigorate employers’ confidence in the visa status.

6. The USCIS and State Department are seeking a method and means to modernize the Visa Bulletin and allocation process to ensure that backlogs are reduced and the process is workable and usable for all intending permanent residents.

7. The USCIS will enhance the National Interest Waiver process to allow greater flexibility in adjudications and permit foreign inventors, researchers and founders of start-up enterprises to benefit the U.S economy.

8. The USCIS will create a parole system for “eligible inventors, researchers and founders of start-up enterprises who do not yet qualify for a National Interest Waiver, but who: (1) Have been awarded substantial U.S. investor financing; or (2) Otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting-edge research.”

Graham Adair will monitor the development of these policies and changes in regulation as they work their way through the various government agencies.

Employer Alert on Site Visits

Site visits to employers sponsoring H-1B petitions have been increasing recently as USCIS continues to implement changes in response to its H-1B Benefit Fraud Analysis report from September 2008.  As site visits become more common, employers need to become familiar with what to expect and the topics and questions that may be raised by the inspector.

 

The California Service Center (CSC) advised employers that inspections typically check the work location listed on the I-129 petition.  (For employees who work offsite or at multiple locations, an itinerary should be provided in the petition.)  In  ddition to speaking to a company representative – typically the signatory of the  etition – and the beneficiary, the inspector may also ask to review documents related  to the petition and take photos of the worksite.

 

In practice, we have had inspectors:

  • Verify the information submitted with the petition, including supporting documentation submitted by the petitioner, based on a checklist prepared by USCIS;

  • Verify the existence of a petitioning entity;

 

  • Take digital photographs;

 

  • Speak with organizational representatives to confirm the beneficiary’s work location, employment workspace, hours, salary and duties; and

 

  • Speak with employees to confirm job details contained in the I-129 petition.

 

Furthermore, we have had inspectors request general information about other H-1B petitions pending or in process with the employer.  These requests have been made in person, by phone, and by email.

 

Site inspectors will report the results of their site inspections to the Fraud Detection and National Security (FDNS).  An FDNS Officer will review the information and determine whether an official inquiry should be made.  If so, the FDNS will provide an Immigration Services Officer (ISO) with a Summary of Findings (SOF), which may decide to request additional evidence from the petitioner or initiate denial or revocation proceedings.  When indicators of fraud are identified, the FDNS Officer may refer the case to ICE for criminal investigation.

 

If your company is contacted about a site visit, contact your Graham Adair attorney for guidance.

UNITED STATES – ICE Will Serve More Than 500 Notices of Inspection

The American Immigration Lawyers Association (AILA) has reported that U.S. Immigration and Customs Enforcement (ICE) plans to serve more than 500 new Notices of Inspection to U.S. companies within the next few days. According to ICE, the planned audits were triggered by information received about companies that are believed to be engaging in the hiring of unauthorized workers and/or paying unfair wages.

If you receive a Notice of Inspection, please contact us right away at: info@grahamadair.com.