Recent department of labor denial of a special recruitment labor certification indicates risk for online sources of “national professional journal” ad (may 21, 2019)
Universities and other qualifying academic institutions that rely on advertisements in InsideHigherEd.com or HigherEdJobs.com to satisfy the Special Recruitment labor certification requirement of "at least one advertisement for the job opportunity placed in a national professional journal" should proceed with caution in light of the U.S. Department of Labor's recent denial of a Special Recruitment application on that basis. Read more.
Federal court halts application of Uscis unlawful presence memo impacting students and scholars (may 16, 2019)
On May 3, the U.S. District Court for the Middle District of North Carolina issued an order enjoining U.S. Citizenship & Immigration Services (USCIS) from implementing “in all applications” its August 9, 2018 Policy Memorandum “Accrual of Unlawful Presence and F, J, and M Nonimmigrants.” The court rejected the government’s motion to dismiss the higher education plaintiffs’ lawsuit challenging the memorandum, which dramatically changed 21 years of USCIS policy regarding the calculation of unlawful presence for foreign students and scholars admitted to the U.S. for “duration of status” (D/S), finding that the plaintiffs had demonstrated a likelihood of success on the merits of their challenge.
Students and exchange visitors generally are authorized to remain in the U.S. for what is known as “duration of status.” In the challenged policy, USCIS changed its longstanding position that students and exchange visitors with duration of status did not begin to accrue “unlawful presence” (potentially becoming subject to the three or ten year bars to re-entry in INA 212(a)(9)(b)) until after an official determination that they were out of status. Instead, the agency stated it would calculate unlawful presence from the date after the student or exchange visitor engages in an unauthorized activity—even if they were unaware that they had violated the terms of their status.
CAUTION! The preliminary injunction is NOT a final decision on the merits of the case. If a student or scholar who is potentially subject to the three or ten year bars travels abroad during the injunction (triggering the bar but-for the injunction), it is unclear what the consequence could be if the plaintiffs are ultimately unsuccessful in court. Students or scholars with concerns about unlawful presence should speak with an immigration attorney before departing the U.S.
This decision is another rebuke to the administration that it cannot make radical changes in existing policy by disregarding administrative law. A final decision is expected in June.
TRAVEL BAN 3.0 LIFTED FOR CHAD, REMAINS FOR 6 OTHER NATIONS (APRIL 11, 2018)
President Donald Trump on Tuesday night lifted restrictions on travel for citizens of Chad, modifying an earlier executive order implementing the third version of his travel ban on nationals from seven nations.
breaking: Supreme court agrees to hear challenges to travel ban 3.0 (jan. 19, 2018)
The U.S. Supreme Court announced on Friday that it would consider a challenge to President Trump’s latest effort to limit travel from Iran, Libya, Syria, Yemen, Somalia, Chad, North Korea, and Venezuela. The justices are likely to hear arguments in the latest case in the spring and to issue a decision in late June. The appeal stems from a lawsuit brought by Hawaii, several individuals and a Muslim group; they prevailed before a Federal District Court and before a three-judge panel of the United States Court of Appeals for the Ninth Circuit. In the meantime, the Trump Administration is fully implementing Travel Ban 3.0, based on a Supreme Court order from early December 2017.
USCIS Accepts daca renewal applications as a result of court order. (jan. 15, 2017)
As a result of a federal court order, USCIS will again be adjudicating Renewal Applications for Deferred Action for Childhood Arrivals (DACA) under the same terms in place before the program was rescinded on September 5, 2017. USCIS will not be accepting initial applications from those who have never been granted DACA, nor will it accept advance parole applications from DACA recipients. If one previously had DACA, but it expired before September 5, 2016, DACA must be requested as an initial request, rather than as a renewal. For more information, visit the USCIS website. The Department of Justice has appealed the court's decision, and will also seek direct review of the decision by the US Supreme Court. (Jan. 16, 2018)
BREAKING: SUPREME COURT STAYS LOWER COURT DECISIONS REGARDING TRAVEL BAN 3.0; ALLOWS ORDER TO BE FULLY IMPLEMENTED WHILE CHALLENGES ARE ON-GOING. (DEC. 4, 2017)
Today the U.S. Supreme Court issued an order permitting the administration to fully implement the latest version of the President's travel ban policy in its entirety.
Lower court rulings had exempted from the travel restrictions foreigners with "bona fide" family or business or educational ties to the United States, but the justices issued a stay Monday that allows Trump to carry out the new policy even on those with U.S. connections, at least for now.
In June, ruling on an earlier version of the travel order, the justices ruled the administration could refuse entry for visitors and immigrants from several Muslim nations, but not to families, travelers and others who had a “credible claim of a bona fide relationship with person or entity in the United States.” In recent weeks, the 9th Circuit Court of Appeals, based in California, and a federal judge in Maryland adopted that standard and applied it to the President's latest order. They agreed the ban could go into effect in part, but not against those with who had close personal or professional ties to a person or an entity here. The 9th Circuit and the 4th Circuit, based in Richmond, Va., were still weighing claims that the President's order discriminated based on nationality in violation of a 1965 law. The appeals courts are also considering claims that the ban reflected unconstitutional bias against Muslims.
The administration filed an emergency appeal on November 20 contending that allowing the ban to go into only partial affect “will cause ongoing irreparable harm to the government and the public.” They predicted the court would eventually uphold the order so the justices should permit the order to go into full effect without further delay.
What This Means: Non-immigrants from the designated countries who are in the United States should refrain from travel and consult immigration counsel regarding their options.
breaking: ninth circuit us COURT OF APPEALS LIFTS A PRELIMINARY INJUNCTION AGAINST ENTRY RESTRICTIONS ON NATIONALS OF SIX MUSLIM-MAJORITY COUNTRIES, EXCEPT AS TO FOREIGN NATIONALS WHO HAVE A CREDIBLE CLAIM OF A BONA FIDE RELATIONSHIP WITH A PERSON OR ENTITY IN THE UNITED STATES. (nov. 13, 2017)
This means that the Administration can enforce Travel Ban 3.0, except for those travelers with a bona fide relationship with a person or entity in the U.S. People with a qualifying family relationship include grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins. A qualifying relationship with an entity must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading Presidential Proclamation 9645; examples include job offers or admission to a U.S. college or university. The lower court did not block the Presidential Proclamation's entry restrictions against nationals of North Korea and certain nationals of Venezuela, and the travel ban remains in effect for those countries as originally stated in Presidential Proclamation 9645. The Ninth Circuit's formulation regarding implementation of Travel Ban 3.0 is similar to the decision of a second federal trial court in Maryland, which only blocked enforcement of the Travel Ban as against travelers with a bona fide relationship. The bona fide relationship test originated with the U.S. Supreme Court's interim decision on Travel Ban 2.0.
second us district court issues order temporarily blocking administration from implementing travel ban 3.0 (oct. 18, 2017)
Late Tuesday, October 17, 2017, the US District Court for the District of Maryland issued a preliminary injunction preventing the administration from implementing Travel Ban 3.0 against travelers from Syria, Libya, Iran, Yemen, Chad, and Somalia who lack a bona fide relationship with a person or entity in the United States. Again, the restrictions against travelers from North Korea and government officials from Venezuela are not impacted, and will go into effect. In its 91-page opinion, the Court concluded that Travel Ban 3.0--which has "no specified end date and no requirement of renewal"--violated a nondiscrimination provision in the immigration law based on nationality. The Court based much of its ruling on its finding that the president intended to ban Muslims, and thus the order runs afoul of the Establishment Clause of the Constitution, protecting religious freedom.
US DISTRICT COURT TEMPORARILY BLOCKS ADMINISTRATION FROM IMPLEMENTING TRAVEL BAN 3.0 AGAINST TRAVELERS FROM SYRIA, LIBYA, IRAN, YEMEN, CHAD, AND SOMALIA; PROVISIONS IMPACTING TRAVELERS FROM NORTH KOREA AND VENEZUELA REMAIN IN PLACE. ORDER WAS SET TO TAKE EFFECT AT 12:01 AM ON OCTOBER 18. (OCT. 17, 2017)
On Tuesday, October 17, 2017, the US District Court for the District of Hawai'i issued a temporary restraining order preventing the administration from implementing the third iteration of the Travel Ban against any travelers from Syria, Libya, Iran, Yemen, Chad, and Somalia, irrespective of whether the individual could demonstrate a bona fide relationship with a person or entity in the United States. That test was imposed by the US Supreme Court in relation to the second version of the Travel Ban. The Court stated in its 40-page opinion that the president had exceeded the authority granted him by Congress in immigration law.
The temporary restraining order is an interim measure, meant to maintain the status quo as the parties continue to argue the case.
white house announces expanded order prohibiting or limiting entry to the united states by nationals of iran, somalia, libya, yemen, syria, chad, north korea, and venezuela (september 24, 2017)
In a Presidential Proclamation issued September 24, 2017, the White House announced expanded prohibitions, limitations, and scrutiny on entry to the United States for nationals of eight countries. The new restrictions apply to foreign nationals of the designated countries who are:
Outside the United States on
3:30 PM EDT, September 24, 2017 for nationals of Iran, Somalia, Libya, Yemen and Syria, who lack a bona fide relationship with a person or entity in the United States; AND
12:01 AM EDT, October 18, 2017 for nationals of Iran, Somalia, Libya, Yemen and Syria who have a credible claim of a bona fide relationship with a person or entity in the United States; AND
12:01 AM EDT October 18, 2017 for nationals of Chad, North Korea, and Venezuela.
Do not have a valid visa on the effective date; and
Do not qualify for a visa or other valid travel document under the Proclamation.
The new restrictions DO NOT apply to:
lawful permanent residents of the United States (LPRs, green card holders);
foreign nationals of the designated countries admitted to or paroled into the US on or after the effective date;
foreign nationals of the designated countries who have a travel document OTHER than a visa (such as a boarding foil or advance parole document), valid on or after the effective date;
any dual national of a designated country traveling on a passport issued by a non-designated country;
foreign nationals traveling on a diplomatic or diplomatic-type visa, NATO visa, C-2, G-1, G-2, G-3 or G-4 visas; or
any foreign national who has been granted asylum by the US, any refugee already admitted to the US, or any individual granted withholding of removal, advance parole, or protection under the Convention Against Torture.
Chad. Entry into the US by nationals of Chad holding immigrant (permanent resident) visas, and nonimmigrant (temporary) business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas is suspended.
Iran. Entry into the US by nationals of Iran holding immigrant (permanent resident) visas, and ALL nonimmigrant (temporary) visa classifications, EXCEPT those with valid student (F and M) and exchange visitor (J) visas, is suspended.
Libya. Entry into the US by nationals of Libya holding immigrant (permanent resident) visas, and nonimmigrant (temporary) business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas is suspended.
North Korea. All entry into the US by nationals of North Korea is suspended.
Syria. All entry into the US by nationals of Syria is suspended.
Venezuela. Entry into the US by officials of government agencies of Venezuela involved in screening and vetting procedures (including the Ministry of the Popular Power for Interior, Justice and Peace; the Administrative Service of Identification, Migration and Immigration; the Scientific Penal and Criminal Investigation Service Corps; the Bolivarian National Intelligence Service; and the Ministry of the Popular Power for Foreign Relations), and their immediate family members, as nonimmigrant (temporary) business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas is suspended.
Yemen. Entry into the US by nationals of Yemen holding immigrant (permanent resident) visas, and nonimmigrant (temporary) business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas is suspended.
Somalia. Entry into the US by nationals of Somalia holding immigrant (permanent resident) visas is suspended.
Waivers of the restrictions may be granted by a Consular Officer or the Commissioner of US Customs & Border Protection (CBP) or the Commissioner's designee on a case-by-case basis.
Nationals of Iran and Venezuela holding valid visas in exempt (not listed) classifications can expect to undergo additional screening measures.
Nationals of Somalia applying for nonimmigrant (temporary) visas and entry to the US will be subject to additional scrutiny for connections to terrorist organizations.
update: some refugees still subject to travel ban. (sept. 18, 2017)
On September 12, 2017, the U.S. Supreme Court issued an order blocking the Ninth Circuit Court of Appeal’s September 7, 2017 ruling that would have exempted from the Travel Ban refugees who have a formal assurance from a refugee resettlement agency. In light of the Supreme Court’s September 12, 2017 ruling, refugees will be barred from entry under the Executive Order if their sole basis for establishing a “bona fide relationship” with a person or entity in the United States is a formal assurance from a refugee resettlement agency. Refugees who are part of the Lautenberg program should be permitted to travel and enter the United States, as the Lautenberg program requires a relationship with a close family member in U.S. in order to qualify for the program. In its September 12, 2017 order, the Supreme Court did not, however, disturb the Ninth Circuit’s September 7, 2017 ruling with respect to grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States. These individuals remain exempt from the Travel Ban as they fall within the definition of “close familial relationship” per the U.S. District Court for the District of Hawaii’s July 13, 2017 ruling, which was upheld by the Ninth Circuit on September 7, 2017. The Supreme Court will hear arguments on the merits of the challenge to the Travel and Refugee Ban on October 10, 2017.
previously: ninth circuit court of appeals upholds district court decision on travel ban; grandparents and refugees with assurances from resettlement agencies have "bona fide" connection (sept. 7, 2017)
On Thursday, September 9, the US Court of Appeals for the Ninth Circuit issued an order upholding an earlier ruling by the District Court that both grandparents and refugees with assurances from US resettlement agencies can demonstrate the "bona fide" relationship required by the Supreme Court's July 19th ruling, enabling a wider class of individuals to enter the US under the Travel Ban.
breaking: trump administration rescinds deferred action for childhood arrivals (daca); offers six month wind-down process as opportunity for congress to act (sept. 5, 2017)
On September 5, 2017, Attorney General Jeff Sessions announced that the Administration would immediately rescind the Deferred Action for Childhood Arrivals (DACA) program, implemented by President Obama in 2012 through Executive Action. 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.
What This Means:
New DACA Applications (and Applications for Employment Authorization) that were received by USCIS before September 5, 2017 will be processed.
Renewal DACA Applications (and Applications for Employment Authorization) that were received by USCIS before September 5, 2017 will be processed.
DACA recipients whose status will expire by March 5, 2018 may submit a Renewal DACA Application before October 5, 2017 and it will be processed.
USCIS will reject all requests to renew DACA and associated Applications for Employment Authorization filed after October 5, 2017.
Effective September 5, 2017, USCIS will no longer approve any new Applications for Advance Parole (travel authorization) under standards associated with the DACA program. USCIS will administratively close all pending DACA Advance Parole Applications, and will refund all associated fees.
The Department of Homeland Security has published Frequently Asked Questions regarding the Administration's action, with more detailed information. Click here.
Several pieces of legislation that would protect "Dreamers" have already been introduced and are awaiting your call of support:
Dream Act, introduced by Senators Lindsey Graham (R-S.C.) and Dick Durbin (D-Ill.);
Dream Act of 2017, introduced by Representatives Lucille Roybal-Allard (CA-40) and Ileana Ros-Lehtinen (FL-27); and
American Hope Act, introduced by Minority Leader Nancy Pelosi (CA-12), Minority Whip Steny Hoyer (MD-5), Rep. Luis Gutierrez (IL-4), and members of the Congressional Hispanic Caucus.
Each of these bills would provide young people, who were brought to this country as children and grew up in the United States, the chance to apply for lawful permanent residence, and eventually apply for citizenship. Contact your Senators and Representatives now!
15 states and the district of columbia sue trump administration over daca rescission (sept. 6, 2017)
On Wednesday, a group of 16 attorneys general — all Democrats — filed suit in Federal District Court in Brooklyn, claiming that Mr. Trump had improperly upended the policy known as Deferred Action for Childhood Arrivals or DACA. The lawsuit alleges that Mr. Trump’s action was driven by racial animus toward Mexican Americans and that the Trump administration failed to follow federal rules governing executive policy making. Additional lawsuits are expected, several major companies intend to join the lawsuits, and two, Microsoft and Amazon, have pledged to pay the legal expenses of any employees who become vulnerable to deportation.
UPDATE: Supreme Court stays portion of US District Court Order modifying the Travel Ban injunction for certain refugees (July 19, 2017)
The Supreme Court issued an order staying the US District Court of Hawai'i's order modifying the preliminary injunction with respect to refugees covered by a formal assurance, pending resolution of an appeal in the Ninth Circuit. The Court did not stay the District Court's order modifying the preliminary injunction with respect to grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States. The Court also denied the motion for clarification of its 6/26/17 order.
(July 14, 2017)
Late in the evening on July 13, 2017, the US District Court for the District of Hawai'i ruled that the Travel Ban should not prevent grandparents and other close relatives of residents, and certain refugees with a formal assurance from a US refugee resettlement agency, from entering the US. Specifically, the Court prohibits the government from enforcing the Travel Ban to exclude:
grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the US; and
refugees who have a formal assurance from a refugee resettlement agency in the US or are in the US Refugee Admissions Program - Lautenberg Program (which permits certain nationals of the former Soviet Union and other countries with "close family in the US" to apply for refugee status).
Last month, the US Supreme Court ruled that the travel ban could proceed on a limited basis. Applicants who could show a “bona fide relationship” with a “person or entity” in the United States would be exempt from the 90-day ban on travelers from Iran, Libya, Somalia, Sudan, Syria and Yemen and the 120-day ban on refugees from around the world. (Read more here). The Supreme Court did not specify which individuals or entities would qualify as close relations, and the US Department of State took a narrow view which excluded grandparents, among others. The State of Hawai'i challenged the government's limited interpretation, and asked the District Court to amend the nationwide injunction. While this ruling is a victory for opponents of the Travel Ban, further litigation in the Courts of Appeals can be expected, as well as consideration of the ultimate issues by the Supreme Court in the fall.
Breaking: Limited enforcement of Revised Travel Ban in effect as of 8:00 pm EDT June 29, 2017
(June 30, 2017)
Who IS Subject to Suspension of Entry Under the Executive Order
Nationals or citizens of Sudan, Syria, Iran, Libya, Somalia, and Yemen who are outside the US, do not have a valid visa, and do not have a bona fide relationship with a close family member or entity in the US. See below for definitions.
Who IS NOT Subject to Suspension of Entry Under the Executive Order
Lawful permanent residents of the United States;
Foreign nationals from Sudan, Syria, Iran, Libya, Somalia, and Yemen who have valid visas;
What if your visa has expired?
If you were present in the United States on June 26, 2017, the Executive Order will not apply to you when you apply for a subsequent visa.
If you have a bona fide relationship with a close family member in the US, you can apply for a visa. A “close family” relationship includes: a parent (including parent-in-law), spouse, child, adult son or daughter, fiancé(e), son-in-law, daughter-in-law, and sibling, whether whole or half. This includes step relationships. However, “close family” does not include grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-law and sisters-in-law and any other “extended” family members.
If you have a bona fide relationship with an entity in the US, you can apply for a visa. A bona fide relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading the Executive Order.
Foreign nationals from Sudan, Syria, Iran, Libya, Somalia, and Yemen who have Advance Parole
Any dual national of a designated country when traveling on a passport issued by a non-designated country;
Any foreign national traveling on designated diplomatic visas;
Individuals who have already been granted asylum or refugee status in the United States, or any individual who has been granted withholding of removal, or protection under the Convention Against Torture;
First-time refugees whose travel was already formally scheduled by the Department of State;
New refugee applicants who can demonstrate
A bona fide relationship with a close family member in the US. See above.
A bona fide relationship with an entity in the US, which may include a refugee resettlement agency. See above.
Additional Updates: The plaintiffs in Hawai'i v. Trump have asked the District Court to clarify the scope of the court's injunction barring implementation of the Executive Order (as modified by the Supreme Court). The plaintiffs assert that the government is applying the definition of a bona fide relationship too narrowly in light of the Supreme Court decision.
Supreme Court Permits Limited Enforcement of Trump's Revised Travel Ban; Will Hear Arguments in October
June 26, 2017. Today the Supreme Court agreed to review rulings by two lower courts blocking the implementation of President Donald Trump’s March 6 executive order, popularly known as the “travel ban.” The justices also granted the Trump administration’s request to allow the ban to go into effect ONLY for would-be travelers who DO NOT already have some connection to the United States. Those with a connection are still protected by the injunctions.
Background: Citing national-security concerns, the Executive Order imposed a freeze on new visas for individuals from six Muslim-majority countries (Iran, Libya, Somalia, Sudan, Syria and Yemen). Enforcement of the Executive Order was halted by decisions from the Districts of Maryland and Hawai'i, which were upheld last month by the Fourth and Ninth Circuit Courts of Appeals, respectively. The Trump Administration sought review by the US Supreme Court, and requested that the Court reinstate the travel ban while the case was under consideration.
Today's Decision: The court partially lifted the injunctions with respect to individuals from the six countries who do not have a bona fide connection to a US family member or US entity. Importantly, the court provided the following examples of individuals WITH bona fide connections to the US:
a foreign national with a close familial relationship seeking to enter the US to live with or visit a family member;
a formal, documented relationship with a US entity made in the ordinary course of business, e.g.,
a student admitted to a US college or university;
a worker who accepted an offer of employment from a US company; or
a lecturer invited to address a US audience;
a refugee who can credibly claim a bona fide relationship with a person or entity in the US.
The lower court injunctions blocking enforcement of the travel ban would still protect individuals in the above categories.
In other words, the ban only applies to people living overseas “who have no connection to the United States at all.” When those people are unable to come to the US, the court reasoned, their constitutional rights are not violated – because they have no right to come to the US – and their exclusion from the country does not harm anyone in the US.
Three Justices dissented from the unsigned opinion – Justices Thomas, Alito, and Gorsuch – stating that they would have permitted the travel ban to be fully enforced while the case is pending before the Supreme Court, even for individuals similarly situated to the plaintiffs.
Approximately 72 hours from the release of the decision (Thursday, June 29, 2017), Department of Homeland Security (DHS) officials, consular officers, and others will be authorized to ban refugees and travelers from the six affected countries who cannot show a bona fide relationship with a U.S.-based family member or entity. Refugees and people with immigrant and nonimmigrant visas will not be banned if they can show a bona fide relationship with a family member or entity in the United States. For individuals, a "close familial relationship" is required. Travelers may not seek to establish a relationship with an entity solely for the purpose of evading the ban.
The Supreme Court also formally lifted the injunction on the government's study that could lead, under section 2(e) of the Executive Order, to an indefinite ban on entry by nationals of countries that do not provide the US government with sufficient information on their citizens who are applying for US visas or immigration benefits.
If you or any of your employees have questions, please contact us.
President Signs New Executive Order; Courts Halt Implementation
NINTH CIRCUIT COURT OF APPEALS UPHOLDS STAY OF TRAVEL BAN AND REFUGEE BAN (JUNE 12, 2017)
The Ninth Circuit on Monday affirmed in substantial part the district court's issuance of a preliminary injunction blocking implementation of Sections 2 and 6 of Executive Order 13780, which suspended entry of nationals from six Muslim-majority countries and suspended the US Refugee Admissions Program. The Court of Appeals concluded that the plaintiffs--individuals and the State of Hawai'i--demonstrated a likelihood of success on the merits that the Revised Executive Order contravenes the Immigration and Nationality Act by exceeding the President's statutory authority, discriminating on the basis of nationality, and disregarding procedures for setting annual admissions of refugees. The court did not address the plaintiffs' other argument that the Executive Order violates the First Amendment's bar against religious discrimination.
The court did conclude that the district court's injunction was over-broad to the extent it barred the government's internal review of consular vetting procedures, and lifted the injunction as to those activities. The court also agreed with the government that the injunction was inappropriate as applied to President Trump himself, and therefore lifted the injunction as to the President.
GOVERNMENT SEEKS SUPREME COURT REVIEW OF THE FOURTH CIRCUIT'S DECISION AFFIRMING STAY OF THE TRAVEL BAN (June 1, 2017)
The government filed a petition for certiorari seeking Supreme Court review of the Fourth Circuit Court of Appeals' decision affirming a stay of Section 2(c) of Executive Order 13780, which suspended entry to the US of nationals of six majority-Muslim countries. The government also sought a stay of the US District Court of Hawai'i decision staying the travel ban or, in the alternative, pre-decision review by the Supreme Court.
FOURTH CIRCUIT COURT OF APPEALS UPHOLDS STAY OF TRAVEL BAN (May 25, 2017)
The Fourth Circuit on Thursday affirmed in substantial part the district court's issuance of a nationwide preliminary injunction as to Section 2(c) of Executive Order 13780, which suspended the entry of nationals of six Muslim-majority countries for 90 days. The court agreed with the government that the district court erred in issuing an injunction against President Trump himself, and therefore lifted the injunction as to the President only.
A majority of a full sitting of the Court held that the groups bringing the case credibly alleged that the order's professed national security aim was given in “bad faith,” as a front for a religious purpose, and that although President Trump had broad power to deny entry into the United States, his executive order “stands to cause irreparable harm to individuals across the nation.”
The ruling is the first appellate court ruling on the second executive order, which was signed March 6. The US Court of Appeals for the Ninth Circuit also heard arguments earlier this month over a broader injunction against the executive order from the district court in Hawaii, but has yet to release its decision.
Attorney General Sessions has indicated that the Department of Justice will petition the US Supreme Court for review.
NINTH CIRCUIT COURT OF APPEALS EXPEDITES TRAVEL BAN APPEAL, HEARING EXPECTED IN MAY (APRIL 4, 2017)
The Ninth Circuit on Monday agreed to hear the President’s appeal of a Hawai'i federal judge's preliminary injunction of his controversial travel ban on an expedited basis, setting the stage for oral arguments for a to-be-determined date in May.
FOURTH CIRCUIT COURT OF APPEALS EXPEDITES TRAVEL BAN CASE, SETS MAY 8 HEARING (MAR. 24. 2017)
The US Court of Appeals for the Fourth Circuit agreed Thursday to expedite the government's appeal of a court order halting implementation of the travel ban portion of the President’s New Executive Order, setting oral arguments in the case for May 8 at the court in Richmond.
During oral arguments surrounding the first order, the Ninth Circuit attracted a large audience by live streaming the hearing. A representative in the Fourth Circuit’s Clerk’s Office said the court does not plan to livestream the May 8 arguments at this time, but the court does provide audio recordings of arguments.
A federal judge in Hawaii, Derrick K. Watson, also issued an injunction against the order, which blocked the travel restrictions as well as other provisions, including the 120-day suspension of the refugee program. The government has yet to appeal that order.
FEDERAL JUDGE IN HAWAI'I ISSUES WORLDWIDE RESTRAINING ORDER AGAINST KEY PARTS OF THE NEW EXECUTIVE ORDER HOURS BEFORE IT WAS SET TO TAKE EFFECT (MAR. 15, 2017)
US District Court Judge Derrick issued a world-wide restraining order blocking two core provisions of the New Executive Order: a 90-day halt in issuance of visas to citizens of Iran, Libya, Somalia, Sudan, Syria, and Yemen, and a 120-day halt on refugee admissions from all countries. The Court's order applies "in all places," including the United States, at all US borders and ports of entry, and in the issuance of visas. In a 43-page opinion, the Court ruled that the state of Hawaii and a local Muslim leader had "a strong likelihood of success on their claim" that the President's order intentionally targets Muslims and therefore violates the Constitution's guarantee against establishment of religion.
FEDERAL JUDGE IN MARYLAND HALTS IMPLEMENTATION OF THE TRAVEL BAN PORTION OF THE EXECUTIVE ORDER (MAR. 16, 2017)
Hours after a federal judge in Hawai'i issued a temporary restraining order against the President's New Executive Order, US District Court Judge Theodore Chuang issued a nationwide preliminary injunction prohibiting the enforcement of the 90-day ban against travelers from Iran, Libya, Somalia, Sudan, Syria and Yemen. Judge Chuang's order denied the plaintiffs' request to block other parts of the March 6 Executive Order, including the temporary ban on refugees.
* * *
On Monday, March 6, 2017, President Trump revoked the January 27, 2017 Executive Order 13769 imposing a travel and refugee ban and issued a replacement order. The New Executive Order will be effective as of 12:01 AM EDT on March 16, 2017
TRAVELERS FROM IRAN, LIBYA, SOMALIA, SUDAN, SYRIA, AND YEMEN
Section 2 of the New Order suspends entry to the United States as of 12:01 AM EDT on March 16, 2017 for nationals or citizens of Iran, Libya, Somalia, Sudan, Syria, and Yemen who:
Are outside the United States on March 16, 2017;
Did not have a valid visa at 5:00 pm EST on January 27, 2017; and
Do not have a valid visa on March 16, 2017.
The suspension of entry DOES NOT APPLY TO
Lawful permanent residents of the United States (“green card” holders);
Any foreign national who has a document OTHER than a visa, valid on March 16, 2017 (or issued thereafter), that permits him or her to travel to the United States and seek entry or admission (e.g., an Advance Parole document);
Any dual national of a designated country when traveling on a passport issued by a non-designated country;
Any foreign national traveling on designated diplomatic visas; OR
Any foreign national who has been granted asylum, any refugee who has already been admitted to the United States, or any individual who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture.
A consular officer, Commissioner of US Customs & Border Protection (CBP) (or the Commissioner’s delegee, may, in his or her discretion, decide on a case-by-case basis to authorize the issuance of a visa or permit entry of a foreign national subject to the ban if the foreign national demonstrates that denying entry during the suspension would:
Cause undue hardship;
His or her entry would not pose a threat to national security; and
His or her entry would be in the national interest.
Examples of individuals for whom a waiver may be appropriate:
the foreign national has previously been admitted to the United States for a continuous period of work, study, or other long-term activity, is outside the United States on March 16, 2017, seeks to reenter the United States to resume that activity, and the denial of reentry during the suspension period would impair that activity.
the foreign national has previously established significant contacts with the United States but is outside the United States on the effective date of this order for work, study, or other lawful activity.
the foreign national seeks to enter the United States for significant business or professional obligations and the denial of entry during the suspension period would impair those obligations (e.g., to receive a significant award, or attend a prestigious conference).
the foreign national seeks to enter the United States to visit or reside with a close family member (e.g., 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.
the foreign national is traveling as a United States Government-sponsored exchange visitor.
Any individual whose visa was marked revoked or marked canceled as a result of Executive Order 13769 shall be entitled to a travel document confirming that the individual is permitted to travel to the United States and seek entry. Any prior cancellation or revocation of a visa that was solely pursuant to Executive Order 13769 shall not be the basis of inadmissibility for any future determination about entry or admissibility.
Iraqis seeking entry to the United States, while not subject to the ban, should be prepared to experience delays in visa issuance. The New Executive Order requires additional screening by the Department of Defense for such applicants, and this make cause delays.
As before, the New Executive Order suspends entry of refugees into the US and decisions on applications for refugee status under the US Refugee Admissions Program (USRAP) for a period of 120 days. The suspension DOES NOT APPLY to refugee applicants who, before March 16, 2017, have been formally scheduled for transit by the Department of State. Refugee admissions and decisions on applications for refugee status will resume 120 days from the effective date (e.g., July 14, 2017) ONLY for stateless persons, and nationals of countries for which the Secretaries of State, Homeland Security and the Director of National Intelligence have determined have procedures implemented adequate to ensure the security of the US.
The New Executive Order limits the entry of refugees in FY 2017 to no more than 50,000.
Waivers: The Secretaries of State and Homeland Security may jointly determine to admit refugees on a case-by-case basis where entry is in the national interest and does not pose a threat to the security or welfare of the US.
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On January 27, 2017, President Donald J. Trump signed an Executive Order relating to visa issuance, screening procedures, and refugees, titled "Protecting the Nation From Foreign Terrorist Entry Into the United States."
temporary restraining order (tro) blocks implementation of executive order; us court of appeals denies government's request to reinstate the travel ban while the case is pending in the district court (updated feb. 10, 2017)
On Friday, February 3, 2017, the US District Court in the Western District of Washington issued a temporary restraining order (TRO) suspending enforcement of the Executive Order nationwide. In response, the Department of Homeland Security (DHS) and Department of State (DOS) both issued statements indicating that they would return to the policies and procedures in place prior to the Executive Order. DOS stated that provisionally revoked visas were valid once more, and Customs & Border Protection announced procedures for travelers whose visas had been physically marked in the initial roll-out to be admitted.
The Government filed an appeal to the US Court of Appeals for the Ninth Circuit the following day (February 4), and both sides submitted briefs and conducted oral argument on Tuesday, February 7.
On Thursday, February 9, the Court of Appeals denied the Government's request to lift the TRO and re-institute the Executive Order's travel ban, concluding that the Government had not demonstrated a likelihood of success on the merits of its appeal, nor that the failure to lift the TRO would cause irreparably injury to the Government. Therefore, until further action by a court, the order barring implementation of the travel and refugee ban remains in place, and all individuals may apply for visas and admission to the United States without regard to nationality.
The case now returns to the US District Court for briefing and argument on the merits of the States' request for a preliminary injunction blocking implementation of the Executive Order. All legal briefs are due to be filed by Friday, February 17, and a hearing will likely be scheduled shortly thereafter.
uscis will adjudicate petitions & applications filed by or on behalf of individuals from the designated countries (updated feb. 3, 2017)
We have received reports that guidance may have gone out to the field indicating that Section 3(c) of the Executive Order does not affect USCIS adjudication of applications and petitions filed for or on behalf of individuals in the United States regardless of their country of nationality, and that adjudications at field offices have resumed. We are awaiting official confirmation from USCIS.
No Current Plans to Expand Travel Ban Beyond Current Countries (Updated Feb. 2, 2017)
In response to rumors of plans to expand the travel ban to other countries, the Department of State (DOS) informed the American Immigration Lawyers Association (AILA) that there is no addendum, annex, or amendment now being worked on to expand visa revocations or the travel ban to countries other than those currently implicated in the Executive Order. This includes Colombia and Venezuela which have been widely rumored to be under consideration. DOS confirmed that there is no information that supports such a rumor and asked that AILA members help end the spread of this false information.
entry to the us by nonimmigrants and immigrant visa holders bearing passports from iran, iraq, libya, somalia, sudan, syria, and yemen is barred; US citizens and lawful permanent residents are not subject.
Section 3 of the Executive Order suspends the immigrant and nonimmigrant entry of nationals from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen for 90 days from the date of the order (i.e., April 27, 2017); this ban has the potential to be permanent.
The Executive Order applies to nearly all travelers, except U.S. citizens and Lawful Permanent Residents, traveling on passports from Iraq, Syria, Sudan, Iran, Somalia, Libya, and Yemen who are applying for entry to the United States at any port of entry—air, land or sea.
On February 1, 2017, White House Counsel issued "Authoritative Guidance" on the Executive Order clarifying that the Order does not apply to Lawful Permanent Residents (those holding a green card--Form I-551--or a temporary I-551 stamp).
The Department of Homeland Security (DHS) and US Customs & Border Protection (CBP) have stated that dual nationals will be assessed according to the travel document they present. That is, if a citizen of Iran and Canada presents his or her Canadian passport and visa at a port of entry, he or she will be processed based on Canadian nationality.
Landed immigrants of Canada (not including refugees) who hold passports of a restricted country can apply for admission to the US, if the individual presents that passport with a valid immigrant or nonimmigrant visa and proof of their landed immigrant status, and only if the travel both originates in Canada and is through a land border or Preclearance location.
All individuals entering the US should be prepared to experience delays and questioning in secondary inspection.
Lawful Permanent Residents SHOULD NOT sign Form I-407, Abandonment of LPR Status. Returning LPRs should not automatically surrender their green cards if asked to do so. Form I-407 must be signed voluntarily. An LPR who refuses to sign Form I-407 will be issued a Notice to Appear (NTA) so that an immigration judge can determine whether they have lost their LPR status. If you find yourself in this situation, contact us.
All international travelers arriving to the US are subject to CBP inspection. This inspection may include electronic devices such as computers, disks, drives, tapes, mobile phones and other communication devices, cameras, music and other media players and any other electronic or digital devices. Be mindful of your social media activity.
nonimmigrant & immigrant visas for nationals of designated countries revoked; changes to visa application process
The US Department of State (DOS) provisionally revoked all valid nonimmigrant and immigrant visas of nationals of the designated countries as of January 27, 2017, with the exception of the following classifications: A-1, A-2, G-1, G-2, G-3, G-4, NATO, C-2, or certain diplomatic visas.
Visa holders from the designated countries will not be permitted to board flights or enter the US. US Consular Offices are cancelling scheduled visa interviews (both immigrant and nonimmigrant) and issuance of visas to individuals from the designated countries. You will not be permitted to enter the Consulate.
Consulates are allowed to process visa applications and issue nonimmigrant and immigrant visas to otherwise eligible visa applicants who apply with a passport from an unrestricted country, even if they hold dual nationality from a restricted country.
Landed immigrants of Canada (not including refugees) who hold passports of a restricted country can apply for an immigrant or nonimmigrant visa to the US, if the individual presents that passport and proof of landed immigrant status to a consular officer. These applications shall be made at a U.S. consular section in Canada.
Expect the roll-out of an enhanced screening program for visa applicants which may delay visa issuance.
Persons from the designated countries, who are in the US in a nonimmigrant status with a valid I-94 record, are allowed to remain in the US. However, if a person from a designated country does need to travel internationally, then a new US visa will need to be obtained to return; no new nonimmigrant visa applications will be approved for persons from the designated countries until after the 90 day period, at the earliest.
refrain from non-essential international travel and contact an attorney.
We are advising clients who might be affected by the Executive Order, including passport holders, citizens, and nationals of the designated countries, to REFRAIN from traveling outside of the United States for the foreseeable future. In addition, you should contact the team at Goldblum & Pollins for appropriate guidance BEFORE planning any future travel outside the United States.
legal challenges to the executive order
There were several immediate legal challenges to the Order in the US District Courts; five courts issued orders temporarily staying the implementation of the Order with respect to foreign nationals who were detained upon arrival at US airports in the initial day of the Order (the "Airport Cases"). Hearings on these cases are scheduled in the next two weeks, but the cases may be mooted as individuals detained at airports are released. On January 30, 2017, a class action complaint was filed in the US District Court in Washington State on behalf of US Citizens and Lawful Permanent Residents (LPRs), and their family members who were prevented from completing the immigrant visa application process, or from entering the US with valid immigrant visas. This is likely to be the first substantive challenge to the Order. Currently, there are approximately thirteen legal challenges to the Executive Order.
Contact us for more information or with questions. We will continue to provide updates as the situation develops.
What you can do now: Contact your Senators and Representatives in Congress and let them know how this impacts you, your family, and your work.