Business Immigration Insights

The fast pace of immigration developments under the new Trump administration continues. The following are some of the issues that are most important to individuals and businesses in the United States:

U.S. Customs and Border Protection clarifies key questions about travel ban

CBP, the federal agency responsible for implementing President Trump’s Executive Order barring travel by nationals of seven countries, has issued clear guidance to the public about the new policies. Please see our previous article for detailed information about the Executive Order and the countries whose nationals are affected. The agency posted an FAQ that addresses a number of topics, including the following:

• Green card holders (aka Lawful Permanent Residents) from the listed countries are not subject to the travel restrictions, based on the national interest waiver provision included in the Order. However, these persons should expect to face heightened scrutiny when entering the United States.
• Dual nationals from one of the listed countries are subject to the travel ban, but only if they present a passport from one of the listed countries. For example, someone who holds passports from both Iran and the United Kingdom is barred from admission if he presents his Iranian passport; if he instead presents his U.K. passport, he is not subject to the travel ban. Travelers are being treated according to the passport they present. Note: this policy has reportedly been verified with the Trump administration by several governments including Canada and the United Kingdom.

Anecdotal reports from colleagues and news organizations generally confirm that the above practices are being implemented at ports of entry throughout the United States. We will continue to monitor the situation closely and provide updates if any of this information should change. Non-U.S. citizens who have ties to the listed countries should continue to use caution when traveling, and may wish to avoid international travel altogether until we observe a consistent pattern of the above policies carried out by CBP officers in the field. Green Card holders and dual nationals from one of the listed countries may wish to carry a printout of the FAQ in case immigration officers in the field are not aware of the official policies.

U.S. Citizenship and Immigration Services halts processing of many applications and petitions

USCIS, the agency responsible for processing applications and petitions for immigration benefits by individuals and businesses, has issued instructions to Field Offices to halt final adjudications for all applications or petitions involving persons who are nationals of the seven countries affected by the travel ban. It is not clear whether all field offices have received or are following this directive. Field offices have been instructed to continue processing cases, but not to complete adjudication until further guidance is provided. The main type of cases this will likely impact are I-485 Applications to Adjust Status to Permanent Residence that are adjudicated at Field Offices. We do not know if or how this will impact adjudications by USCIS Service Centers, i.e., H-1B petitions for extensions or change of employers, or employment-based I-485 applications. However, DHS has confirmed that N-400 naturalization applications will continue to be processed and adjudicated, including administering the oath of citizenship to applicants consistent with prior practice. Applications and petitions should continue to be submitted to USCIS for processing, but some may see delays in final adjudication. This is a very fluid situation and we will update as soon as more details are available.

Department of State cancels visas issued to persons subject to travel ban; allows most interview waivers to continue

On January 27, 2017, the U.S. Department of State (DOS) provisionally revoked most valid nonimmigrant and immigrant visas issued to nationals from the seven countries subject to the travel ban. Certain diplomatic and other visa categories are exempt from this action. This move was largely symbolic since individuals subject to the travel ban are not permitted to enter the United States. However, if and when the travel ban is lifted, individuals from the listed countries would most likely need to reapply to a U.S. consulate abroad for a new visa before they could travel to the United States.

DOS has also confirmed that most interview waiver cases can proceed. Persons who continue to qualify include those under the age of 14 and over the age of 79, and applicants who are renewing a visa in the same category within a year of the prior visa expiration.

Unverified list of additional countries to be subject to travel ban is leaked

We have received information that a draft Executive Order exists that would add the following countries to the current list of seven countries whose nationals are subject to the travel ban: Egypt, Lebanon, Afghanistan, Pakistan, Colombia, Venezuela, southern Philippines, trans-Sahara (Mali), and Sulu/Sulawesi Seas Littoral. We have not seen the draft Order, nor have we received this information through official channels. We also recognize that some of these are regions and not actual countries, and cannot explain that fact or how it might be implemented. However, given the potential implications for travelers from these countries, we are sharing this information. Individuals who travel with passports issued by these countries may wish to avoid international travel if they are currently inside the United States, or may wish to expedite any plans to travel to the United States in advance of the country list being updated. We cannot advise anyone to act upon this unconfirmed information, but are sharing it in order to allow individuals to make their own decisions with regard to international travel.

Additional draft executive orders are leaked

A draft of a January 23, 2017 document entitled “Executive Order on Protecting American Jobs and Workers by Strengthening the Integrity of Foreign Worker Visa Programs” has been leaked. The document primarily calls for a comprehensive review of all employment based nonimmigrant and immigrant visa programs to determine their impact on U.S. and foreign workers. Specific topics and actions mentioned include:

• Review of programs that grant parole to individuals beyond what is authorized by relevant immigration statutes
• Ways to make the process for allocating H-1B visas more efficient and to ensure that beneficiaries are “the best and the brightest”
• Expanding site visits for all nonimmigrant visa categories (currently these are only performed for H-1B and L-1 categories)
• Reform practical training (OPT and STEM OPT) used by international students
• Clarify permissible usage of the B-1/B-2 visa category in light of the prohibition on such visa holders performing labor in the United States
• Consider ways to expand use of E-Verify, perhaps by limiting certain immigration benefits to companies that use the program
• Reform the priority date system and the process for adjusting status to permanent residence to make it more efficient
• Review and reform the E-2 treaty investor category
• Review and reform the J-1 Summer Work Travel program

Another draft executive order dated January 23, 2017 entitled “Ending Unconstitutional Executive Amnesties” would, if signed by President Trump in the current form, immediately cancel the deferred action programs for parents of U.S. citizens and permanent residents (DAPA) and persons who came to the United States as children (DACA). The DAPA program has already been blocked by courts, but the DACA program is currently used by more than 700,000 persons, the so-called Dreamers. Under the language in the draft order, DAPA benefits would immediately be rescinded, while DACA benefits would be allowed to run out for their current validity periods, but could not be renewed.

It is important to reiterate that these are draft executive orders that may not ultimately be signed by President Trump, or might be revised in whole or in part before they become official policy.  We will continue to monitor and report on these and other developments.

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