Travel Ban Enjoined

February 12, 2017 § Leave a comment

The controversial Executive Order that had banned travelers from the seven predominantly Muslim countries (Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen) as well as admission of refugees, including those from Syria, has continued to be enjoined by a federal court decision on February 5, 2017. The Ninth Circuit Court of Appeals ruled that the Executive Branch did not have unfettered control in the area of immigration, and the judiciary retained discretion to review political actions such as the Executive Order at issue.

A few days after the issuance of the January 27 Executive Order, the State of Washington sued the President and the U.S. Government for several Constitutional law violations, including Due Process and the First Amendment. The State of Minnesota later joined as a plaintiff.  The States challenged the enforcement of the Executive Order and requested for a Federal District Court in Seattle to issue a temporary restraining order (TRO) to block the Executive Order from continuing to be enforced. Judge James Robart granted the TRO on Friday, February 3, 2017. The Government promptly appealed this decision, and the judges on appeal in the 9th Circuit have unanimously ruled against lifting the TRO.  As such, the travel ban and as well as the ban on refugee admission, including the indefinite ban of Syrians, cannot be enforced.

For a more detailed media coverage on these recent developments, read these Seattle Times and the New York Times articles.

President Trump and his administration face mounting criticisms in light of these events.  The President has continued to voice his disapproval of the legal decisions that have blocked key portions of his Executive Order and vows to keep fighting.

Trump’s Executive Orders

January 28, 2017 § Leave a comment

Within his first week in office, President Trump has signed three executive orders that will immediately have a heavy impact on U.S. immigration law.  The following provisions are among the most controversial:

  • Significantly expand upon the enforcement authority of immigration officials to seek out, fine, detain and remove undocumented individuals;
  • Construction of the southern wall along the U.S.- Mexico border;
  • Institute 30-day suspension of the issuance of nonimmigrant and immigrant visas for nationals from certain countries.  As of the evening of January 27, 2017, these countries are Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen, with the possibility of more countries being added to this list;
  • Institute 90-day suspension the entry of immigrants and nonimmigrants of nationals from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen, with the possibility of more countries being added to this list;
  • Institute 120-day suspension of the U.S.Refugee Admissions Program (USRAP), including an indefinite suspension of the entry of nationals of Syria;
  • Immediate suspension of the Visa Interview Waiver Program, thereby requiring all non-immigrant foreign nationals to go through a visa interview.

The consequences of these actions will be severe and wide-spread.  As immigration officials scramble to keep up with the implementation of these directives, foreign nationals who are stateside or are traveling abroad are urged to exercise the utmost caution and to either return to the U.S. as soon as possible or to cancel any immediate international travel plans.

U.S. Launches new Electronic Visa Update System

December 9, 2016 § Leave a comment

On October 31, the U.S. Customs and Boarder Protection launched the Electronic Visa Update System website for nationals of the Peoples Republic of China. This website is used by travelers from the People’s Republic of China to input biographic information needed for a visa. EVUS can be used at any time, and enrollees receive a response within 72 hours of application- and often within just a few minutes.

This system, similar to the process currently in place for 38 other countries, is mandatory for individuals holding a 10 year visa from the Peoples’s Republic of China with a B1/B2, B1, or B2 stamp. Individuals are required to update their enrollment in EVUS every two years or when they obtain a new passport or visa, whichever comes sooner. Travelers from the People’s Republic of China seeking to enter the U.S. on or after November 29 are required to have a valid EVUS. The CBP maintains a 24 hour, seven day a week helpline with Mandarin speaking operators to assist travelers in enrolling in EVUS.

Proposed New Rule for Entrepreneurs

October 20, 2016 § Leave a comment

On November 21, 2014, Department of Homeland Security (DHS) Secretary Johnson directed USCIS to “propose a program that will permit DHS to grant parole status, on a case-by-case basis, to inventors, researchers, and founders of start-up enterprises who may not yet qualify for a national interest waiver, but who have been awarded substantial U.S. investor financing or otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting-edge research.”
In response, the new proposed “International Entrepreneur Rule” was published on August 31, 2016 in the Federal Register, and the government accepted public comments until October 17, 2016 .  The proposed rule allows immigrant entrepreneurs to stay in the country on a parole basis. It is intended to allow entrepreneurs who are making significant contributions to US business and job growth to stay within the United States on a temporary parole basis of up to five years.

To qualify, the applicant must have significant ownership (at least 15%) in a business within the US that was founded within the last three years. The business must have received an investment(s) within the last year of $345,000 or have received $100,000 in government awards or grants. If these qualifications are met and the application is approved, the parolee could stay in the country for up to two years and is automatically granted employment authorization at his/her start-up entity. Small business with limited growth potential created solely to provide employment to the entrepreneur and his/her family will not qualify.

The parolee could receive another three years of residency if s/he receives at least $500,000 in investments, government rewards or grants, or a combination; OR creates at least 10 new jobs for US citizens or legal residents within the initial two year parole period; OR if the parole received at least $500,000 in increased revenue and achieved at least a 20% growth during the initial parole period. To qualify for reparole, the parolee must still have maintained at least a 10% ownership in the company.

The parole’s spouse and children must apply for parole status separately and by proving their relationship to the entrepreneur. After being paroled into the US, the entrepreneur’s spouse is eligible to apply for employment authorization. No employment authorization will be granted to the children.

There are concerns that this rule has created too difficult of a standard for new entrepreneurs such as students on F-1 status who are starting a business as a part of their MBA studies. The qualifying investment threshold of $345,000, for example, may be too onerous and greatly limits the pool of potential applicants.  Many of the proposed criteria for both an initial grant of parole and re-parole could only be satisfied by a company in a fairly advanced stage of operations.  However, the proposed rule presents a great opportunity for the immigration community, and it will be worthwhile to see what comes of it in the months to come.

Expanded I-601A Waivers- Provisional Waiver of Inadmissibility

September 6, 2016 § Leave a comment

If a visa applicant was facing a 3 or 10 year bar from entering the United States, s/he can request admission by applying for the I-601 waiver. Before March 4, 2013, this waiver could only be applied for from outside of the US.

The applicant would have had to-

  • Leave the United States, knowing that s/he may not be allowed to return for 10 years.
  • Attend an interview with the US consulate in the applicant’s home country.
  • Be found inadmissible because of the 3 or 10 year bar.
  • Then, apply for the I-601 waiver.

Understandably, visa applicants inside the US who had accrued enough unlawful time to be facing a 3 or 10 year bar were reluctant to leave the country to attend their consular interviews. It was impossible to know how long the interview, denial, and waiver application process could take.

The Department of Homeland Security has tried to amend that. As of March 4, 2013, applicants who would face a 3 or 10 year bar upon exiting the US can apply for a provisional unlawful presence waiver from the bar, while still on US soil. On July 29, 2016, the DHS expanded upon this rule which took effect on August 29, 2016. In the final rule, the provisional unlawful presence waiver process has been expanded to now include all individuals seeking provisional waivers, including those in removal proceedings before the Executive Office for Immigration Review (EOIR).  This also means that a qualifying US relative now includes U.S. permanent residents as well as U.S. citizens.

Further, the final rule allows individuals to apply for provisional waivers even if USCIS has a reason to believe that they may be subject to other grounds of inadmissibility.  Other modifications include: Eliminating the proposed temporal limitations that would have restricted eligibility for provisional waivers based on DOS visa interview scheduling; Allowing individuals with final orders of removal, exclusion, or deportation to be eligible for provisional waivers provided that they have already applied for, and USCIS has approved, an Application for Permission to Reapply for Admission into the United States After Deportation or Removal, Form I-212; Clarifying that DHS must have actually reinstated a removal, deportation, or exclusion order in order for an individual who has returned to the United States unlawfully after removal to be ineligible for a provisional waiver on that basis; as well as several technical and non-substantive changes.

The new provisions for applying for the I-601A are intended to help to promote family unity and improves administrative efficiency. Visa applicants facing a 3 or 10 year bar can apply for the I-601A while still inside the US, and can be reasonably sure before they leave whether they will be barred from readmission to the United States.


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