Tag: Immigration

On March 15, 2017, a Federal District Court in Hawaii granted a temporary restraining order preventing implementation of the two key provisions of the latest Executive Order impacting immigration, which was intended to go into effect on March 16th.  The court order halts implementation of Section 2 of the order regarding suspension of entry by nationals of designated countries for 90 days and Section 6 suspending refugee admissions.

Update: On March 29, 2017, the Federal District Court in Hawaii indefinitely extended the March 15^th order blocking enforcement, turning the earlier temporary restraining order into a preliminary injunction. The Administration has appealed this decision to the Ninth Circuit Court of Appeals.  Appeals are now proceeding in the Fourth Circuit and the Ninth Circuit Courts of Appeals, increasing the potential likelihood of the Supreme Court ultimately hearing the issue.

Gibney will continue to closely monitor any proposed changes to policy or procedure under the new Administration, and we will provide updates as needed.   For further details and forthcoming updates, please see Gibney’s Immigration Updates and FAQs page as well as Gibney’s Insights page.  If you have any questions regarding this alert, please contact your designated Gibney representative, or email info@gibney.com.

The general information provided below is not intended to serve as a source of legal advice for any purpose. Please contact your designated Gibney representative or immigration counsel for specific legal advice.

On Monday, March 6, 2017, the Trump Administration issued a new Executive Order which will take effect on March 16, 2017 suspending entry of certain foreign nationals of six (6) countries including Iran, Libya, Somalia, Sudan, Syria, and Yemen for at least 90 days, subject to exemptions and waivers outlined below. The order also suspends the entry of all refugees for at least 120 days.

The new Executive Order is more limited in scope and specifically revokes an earlier Executive Order issued on January 27, 2017, which was suspended pursuant to a Temporary Restraining Order issued by the Ninth Circuit Court of Appeals in State of Washington and State of Minnesota v. Trump. The Administration also issued a new Memorandum issuing guidance for the U.S. Secretary of State, the Attorney General, and the Secretary of Homeland Security in relation to the new Executive Order. Many provisions of the Executive Order and the Memorandum call for increased scrutiny of all foreign nationals applying for entry, visa issuance or other immigration benefits. Additional screening or security protocols at consulates and USCIS may impact processing timelines of all applications.

We will continue to monitor the impact of the new Executive Order as agencies, border officers and consulates implement the new rules and policies.

Key Provisions of the New Executive Order Effective March 16, 2017

Enhanced Screening and Security Protocols: Directing agencies to implement additional screening standards and protocols for refugees and other foreign nationals seeking U.S. entry, visa issuance, and immigration benefits and to report on their efforts.

Suspension of Entry to U.S. by Nationals of Designated Countries: Iran, Libya, Somalia, Sudan, Syria, or Yemen. The order suspends the entry of nationals of the designated countries – by birth or citizenship – for at least 90 days starting March 16, 2017.

Exemptions: Nationals of the designated countries in following categories are not subject to the entry ban:

• U.S. citizens traveling with a U.S. passport;
• Lawful permanent residents (“green card” holders);
• Dual nationals including using the passport from a non-designated country;
• Diplomats;
• Persons already granted asylum, refugees already admitted to the United States and individuals granted withholding of removal, advance parole or protection under Convention Against Torture; and
• Persons applying for entry to the U.S. pursuant to a valid visa obtained prior to the effective date of March 16, 2017.

Waivers: The new Executive Order also provided for limited discretionary waivers to be evaluated on a “case-by-case” basis. Officers at the port of entry and consular officers may issue visas or allow entry of a national subject to the ban if the foreign national has demonstrated to the officer’s satisfaction that denying entry during the suspension period would cause undue hardship, entry would not pose a threat to national security and would be in the national interest. Section 3(c) of the order provides examples of circumstances where a waiver may be appropriate.

Suspension of All Refugee Admissions: The new Executive Order suspends admission and adjudication of applications by refugees into the United States under the United States Refugee Admissions Program (USRAP) for 120 days. The new order no longer singles out Syria and no longer prioritizes refugee claims based on individuals of a “minority religion.”

Suspension of the Visa Interview Waiver Program: The new order requires those applying for visas at U.S. consulates to attend an in-person visa interview.

Travel Precautions:

Due to uncertainties surrounding implementation of this new Executive Order, foreign nationals who may be impacted by the order should contact immigration counsel prior to departing the U.S. or making plans to enter the U.S. or apply for a visa. Travelers subject to the ban currently outside the U.S. should contact immigration counsel immediately and consider return to the U.S. prior to the effective date of March 16, 2017.

Since the release of the initial Executive Order, individuals have reported inconsistent application of rules, being denied entry onto international flights, extended wait times at U.S. Ports of Entry due to extra screening, as well as hours of detention and intrusive questioning (including separating family members and reviewing cell phones, laptops, and social media accounts) without allowing access to legal counsel. All travelers and visa applicants may be subject to increased scrutiny or delays.

Please contact immigration counsel for specific legal advice on your case.

Gibney will continue to closely monitor any proposed changes to policy or procedure under the new Administration, and we will provide updates as needed.   For further details and forthcoming updates, please see Gibney’s Immigration Updates and FAQs page as well as Gibney’s Insights page.  If you have any questions regarding this alert, please contact your designated Gibney representative, or email info@gibney.com.

The U.S. Citizenship and Immigration Services (USCIS) will temporarily suspend Premium Processing for all H-1B petitions for a period of up to six months starting on April 3rd, 2017. The USCIS’s goal is to reduce overall H-1B processing times and prioritize adjudication of long-pending petitions.

Background on Premium Processing:

H-1B petitions filed under the regular processing method have been increasingly subject to lengthy adjudication times from six to eight months or longer.

Premium Processing is an expedited method of adjudication available for certain non-immigrant and immigrant visa petitions, including H-1B petitions. Premium Processing is requested by filing Form I-907 and including an additional government filing fee of $1,225.00. It guarantees a response by USCIS (either an adjudication or Request for Further Evidence) within fifteen (15) calendar days of a petition being submitted.

Impact on Non-Cap Subject H-1B Petitions:

• All H-1B petitions filed on or after April 3rd will be subject to significantly lengthier processing times than may otherwise be secured through the Premium Processing method.
• Eligible employees who have maintained H-1B status, and who are filing a timely extension or amendment of status with the same employer, may continue to work while the extension is pending, up to 240 days.
• Eligible H-1B beneficiaries of a change of employer petition filed on or after April 3rd may have to wait 2-3 weeks or more to obtain a receipt notice from the government to allow them to begin work for the new employer, whereas Premium Processing cases typically received email receipts within a few days.
• Some employees may have travel restrictions or increased risks, depending on the expiration of the I-797 approval and visa stamp in the passport.

Employers are encouraged to work with employees and counsel to file cases six months in advance when possible, and to work with employees to plan ahead for international travel.  USCIS may re-instate Premium Processing at or before six months.  If cases filed during the suspension period are not adjudicated by October or employment authorization is at risk, employers may need to evaluate options for expediting cases or ‘upgrading’ to Premium Processing once available.

Impact on Fiscal Year (FY) 2018 Cap-Subject H-1B Petitions:

The start of the H-1B cap submission period for FY2018 begins on April 3rd. No FY2018 cap-subject petitions will be eligible for the expedited Premium Processing request, and all will be processed through the regular processing method. If cases selected in the lottery are not adjudicated by October 1, there may be an impact on certain F-1 students and some companies may want to consider “upgrading” to Premium Processing once it becomes available again.

Other Considerations:

It is unclear whether the USCIS will continue to honor expedited processing for H-1B petitions submitted with Premium Processing that have not been adjudicated prior to April 3rd. USCIS has stated it may choose to adjudicate these petitions under regular processing, or reject any petitions submitted with joint government filing fee checks that did not separate out the filing fee for the Form I-907 requesting Premium Processing.

This suspension may further impact H-1B employees whose state driver’s licenses are expiring and must be renewed, if evidence of non-immigrant status is required for such renewal. H-1B employees may not be able to renew driver’s licenses, or renewals may only be for a temporary duration. Impacted individuals are encouraged to contact their local Department of Motor Vehicles (DMV) office to inquire regarding renewal requirements.

Expedite Options:

The USCIS has noted that discretionary expedite requests for processing remain available for certain petitions. However, these requests are only accepted in very limited situations, including a showing of severe financial loss to a company or person, emergency situations, or humanitarian reasons, among others. All expedite requests are reviewed on a case-by-case basis and granted at the sole discretion of the USCIS’s office leadership.

If you have any questions about this alert, please contact your Gibney representative or email info@gibney.com.

The Trump Administration’s Executive Order on immigration remains on hold after an appeals court denied an emergency motion by the government to reinstate it.

The Executive Order issued on January 27, 2017, sought to suspend entry of nationals from seven (7) countries including Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen for at least 90 days, and suspend admittance of all refugees for at least 120 days.  The order was immediately challenged in courts across the country, including in Washington State, where a federal district court judge issued a temporary restraining order on February 3, 2017 that blocked enforcement of the travel ban on a nationwide basis while litigation is pending.

In a unanimous decision, a three-judge panel of the US Court of Appeals for the 9th Circuit upheld the lower court judge’s order.   After hearing oral arguments from the Justice Department and Washington State this week, the appeals court panel determined that the Government had not met its burden of proof to justify a stay of the restraining order.

The Administration is expected to act quickly in response to today’s legal set-back.  It may request an en banc hearing of the full appeals court of 11 judges to overturn the ruling; or, more likely, request an Emergency Stay at the U.S. Supreme Court.  The Administration may also consider issuing a new Executive Order or supplemental order.

In the interim, travelers of the seven targeted countries can continue to apply for visas and travel to the U.S.  Additional scrutiny is expected at consulates abroad during visa interviews as well as by US. Customs & Border Protection agents at airports.

Foreign nationals currently in the U.S. who were impacted by the travel ban or provisional visa revocation should still seek specific legal advice from immigration counsel before departing the U.S.

Gibney will continue to closely monitor any proposed changes to policy or procedure under the Trump administration, and we will provide updates as needed. If you have any questions regarding this alert, please contact your designated Gibney representative, or email info@gibney.com.

On Friday, January 27, 2017, the Trump administration issued an Executive Order suspending entry of nationals from seven (7) countries including Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen for at least 90 days, and suspending admittance of all refugees for at least 120 days. Since the Executive Order was signed, U.S. government agencies have issued various guidance regarding the admittance of travelers, reacting in light of various U.S. Federal Court judicial orders.

Most recently, on Friday, February 3, 2017, a Washington state Federal Judge issued a temporary restraining order with regards to the Executive Order, which will serve to immediately block enforcement of the travel ban on a nationwide basis. As of Friday evening, various government agencies have been in contact with international airlines, confirming the ability of travelers to once again board flights to the U.S. and resume re-entry to the U.S. As a result of the recent court order, travelers should now be able to resume access to board international flights; however, significantly long wait times at U.S. Ports of Entry may result due to extra screening.

It has also been reported that the U.S. Department of State will be reinstating as many as 60,000 to 100,000 visas that had been provisionally revoked due to the Executive Order. At the time of this writing, it is unclear whether visas which were physically cancelled as a result of the Executive Order would be valid for travel and entry to the U.S.

Foreign nationals currently in the U.S. who were impacted by the travel ban or provisional visa revocation should still seek specific legal advice from Immigration Counsel before departing the U.S.

The Trump administration has indicated it will challenge the judicial order and will seek a stay of the temporary restraining order.

Gibney will continue to closely monitor any proposed changes to policy or procedure under the Trump administration, and we will provide updates as needed. If you have any questions regarding this alert, please contact your designated Gibney representative, or email info@gibney.com.