UPDATE:  In a landmark decision on February 9, 2017, the Ninth Circuit Court of Appeals halted the Executive Order travel ban imposed on persons from predominantly-Muslim countries.  The Court upheld the temporary restraining order from Judge James Robart’s February 3, 2017, ruling in the lawsuit Washington v. Trump.  As a result, the travel ban is not in force. 

However, some heightened scrutiny still exists in the interest of security.  Persons with concerns about departing from or returning to the U.S. still may want to contact an immigration lawyer prior to travel.  However, citizens and nationals from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen, or with Muslim backgrounds, no longer should be subjected to unduly excessive questioning during visa processing or upon entry to the United States.   

Following is the history of the Executive Order and continuing implications. 

On Friday, January 27, 2017, President Trump issued Executive Orders barring admission into the United States from seven predominantly Muslim countries, suspending all refugee admissions, and barring entry by Syrian refugees. Though no countries are listed on the Order, the intent was the ban on entry into the U.S. by nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen by any persons “from” those countries with nonimmigrant or immigrant visas or status or as refugees.

Multiple lawsuits challenged the Order.  On January 28, 2017 federal courts in several districts issued stays limiting the Order, but the Department of Homeland Security through Customs & Border Protection (CBP) is not fully complying with the stays at all airports and ports of entry.

However, on January 29, 2017, Homeland Security issued a statement, indicating that allowing lawful permanent residents to return to the U.S. is in the national interest, so long as there is no serious derogatory information, as determined on a case-by-case basis.

Overall, CBP and visa officers applied an extremely heightened level of discretion for foreign citizens from Muslim countries (beyond the seven listed), but persons who are allowed to board flights by an large have been allowed to enter the U.S.

Here is a summary of the impact:

Impact on U.S. Citizens

  • The Order does not specifically apply to U.S. born citizens or naturalized US citizens.
  • However, dual U.S. citizens from the 7 countries reported that CBP notified them that their Global Entry trusted traveler authorization is being revoked.

Departing the United States

  • To minimize the impact of the Order, it is advisable to avoid unnecessary travel outside the United States.
  • On January 31, 2017, the Department of State began the provisionally revoking valid visas previously issued to any affected nationals from the 7 countries.  A provisional revocation of a visa does not require the person to depart the U.S., and anyone who receives notification should contact an immigration attorney to discuss implications.  UPDATE: The State Department has started to reinstate the revoked visas.

Returning to the U.S. by Air

  • For persons currently outside the U.S., anticipate enhanced questioning on return, related to activities inside and outside the U.S. and related to family and friends.
  • In some countries, airlines were asking travelers from the 7 countries to sign agreements that if Homeland Security refused to allow them to enter the U.S., the person would agree to pay the return airfare (under existing agreements, the airlines – not the U.S. government or individuals – are liable to cover the cost).

Returning to the U.S. at a Land Border Crossing

  • Entry at land border crossings almost involves more questioning than flying into the U.S. The reason is that some screening occurs through the Advanced Passenger Information System (APIS) before boarding a flight, but the traveler must wait for the immigration officer at the land border crossing to conduct the screening.

Canadians

  • National Security Advisor Flynn advised that dual nationals of Canada are not prohibited from entering the United States and usually should be allowed to enter.

Green card holders returning to the U.S.

  • Green card holders from countries other than the 7 listed report little difference in the admission process from before the Order.
  • Green card holders from the 7 countries who are dual citizens of other countries (such as Canada and the UK) may be subjected to minimal additional screening.
  • Green card holders from the 7 countries are being subjected to additional screening, which may involve a few additional questions by the immigration officer in primary inspection at the entry booth, or the person may be sent to secondary inspection for more extensive questioning ranging from a few minutes to several hours.
  • Some immigration officers and airline representatives have asked green card holders to sign a form (I-407) to abandon permanent resident status and be allowed to enter the U.S. as a visitor.  Permanent residents should not sign a form or relinquish the green card without speaking to a lawyer.
  • UPDATE:  Persons from the 7 countries generally no longer are singled out.

Temporary, nonimmigrant visa travelers

  • Temporary visas holders (such as with H-1B, O-1, L-1, F-1 students, business visitors, tourists, and Canadians and Mexicans with TN status) from the 7 countries may be subjected to enhanced primary or secondary screening.  UPDATE:  Persons from the 7 countries generally no longer are singled out.
  • Those returning to work generally have less questioning that those entering for the first time.

Visa processing overseas

  • Some U.S. embassies and consulates abroad had allowed returning visa applicants to forego an interview under visa interview-waiver programs, i.e., the drop-box for visa renewals. This option no longer exists. Now, all visa applicants must attend an interview.  UPDATE:  Drop-box visa processing has resumed.
  • Persons from other countries attending visa appointments may end up stuck outside the U.S. for some time and be unable to return while waiting for the visa stamp, though this now is less likely to occur.
  • All U.S. embassies and consular posts were instructed to immediately suspend the issuance of nonimmigrant and immigrant visas for nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. Visa interviews for affected individuals are being canceled. The Department of State issued an urgent notice to citizens these countries, “please do not schedule a visa appointment or pay any visa fees at this time. If you already have an appointment scheduled, please do not attend. You will not be permitted entry to the Embassy/Consulate.”  UPDATE:  Visa processing has resumed.

Questions on entry

  • CBP immigration officers at the Ports of Entry may ask travelers to provide social media access, such as contact for Facebook pages, Instagram accounts, etc. Such requests should be declined, as the information is not required.
  • For some travelers, a delay will result from a request to Headquarters in Washington, DC, to clear the person.
  • The Order was not directed to nationals of Saudi Arabia, Bahrain, Oman, Qatar, & UAE, nor to nationals of Bangladesh, Egypt, Indonesia, Morocco, Pakistan, Turkey or other Muslim-majority countries. But some citizens of those countries report being subjected to enhanced secondary screening.
  • The highest scrutiny is being applied to citizens of one of the 7 countries, using a passport issued by one of the 7 countries, and travelling to the U.S. from one of the 7 countries.

Impact on USCIS petition and application processing

  • USCIS reportedly has ceased processing of all immigration petitions and applications for beneficiaries of the 7 countries, for forms that begin with an “I,” (I-130, I-765, etc.), but are processing forms that begin with “N” (such as N-400 naturalization applications).  UPDATE:  Processing has resumed.

Removal or questioning of persons in the U.S.

  • Persons with valid status in the United States are not subject to removal under the Executive Order.
  • Immigration officers who ask to enter the workplace or a home to ask for information about immigration in most cases may be refused if they lack a warrant.

Access to Counsel

  • A person who would like legal representation should ask for a “G-28” while in secondary at a Port of Entry, and even without a G-28, should state that they would like legal representation and to be able to speak to a lawyer and should not be dissuaded by an immigration officer saying the person is not entitled to counsel.

With no advance warning, U.S. Citizenship and Immigration Services (USCIS) revised more than 40 forms on the Friday of the 2016 December long holiday weekend. The forms all have an effective date the same day the notice was posted on its website, December 23, 2016. For most of the forms, no previous editions are acceptable, except for the Form I-129, Petition for Nonimmigrant Worker.  However, USCIS has indicated that it may apply discretion when receipting forms sent around that date, rather than rejecting them outright. Affected forms include the following:

I-90, I-102, I-129, I-129CW, I-129F, I-130, I-131, I-131A, I-140, I-191, I-192, I-212, I-290B, I-360, I-485, I-485 Supplement A, I-525, I-539, I-600, I-600A, I-601, I-601A, I-612, I-690, I-694, I-698, I-751, I-765, I-800, I-800A, I-817, I-824, I-910, I-924, I-924A, I-929, I-942, I-942P, N-300, N-336, N-400, N-470, N-600, and N-600K.

This change will affect green card renewals, business immigration cases, family immigration cases, work authorization applications, citizenship applications, and other types of cases. USCIS did not disclose the reason for the unanticipated change. Persons with concerns about impact on immigration status should contact an immigration attorney.

Filing fee increases for a number of the forms became effective December 23, 2016, as well, but USCIS had given prior notice of the fee increase.

UPDATE:  On December 29, 2016, USCIS announced a grace period for accepting older versions of the forms until Tuesday, February 21, 2017.  However, Monday, February 20, 2017, the day before the new forms are required, is a federal holiday – President’s Day. We recommend treating Thursday, February 16, 2017, as the last effective day for the grace period.  Older versions of the forms sent February 17 or thereafter without the date 12/23/16 at the bottom likely will be rejected (the exception is the Form I-129).

In a bold move, on November 20, 2014, President Obama announced his Immigration Accountability Executive Actions to address flaws in the current immigration system.  The plan contains three parts:

  1. Enhanced border enforcement and employer crackdowns for ongoing immigration violations;
  2. Administrative relief from deportation to allow certain undocumented immigrants to apply to remain in the United States; and
  3. Business-friendly policies to enhance U.S. competitiveness and attract foreign investment and talent.

While the focus has been on the administrative relief, the rest of the plan offers potential improvements for some employment-focused immigration categories:

  •  L-1B specialized knowledge workers:
    • Clarifying the rules to bring greater coherence and integrity, to “enhance companies’ confidence in the program”
  • H-4 spouses of H-1B workers:
    • Providing work authorization to spouses once the H-1B worker’s green card process is well underway
  • Foreign nationals caught in a backlog while seeking permanent resident status:
    • For foreign workers in line for a green card, removing unnecessary restrictions on natural career progression without being tied to one job
    • For their spouse and children, providing work authorization at an earlier stage through a registration process
    • Allowing spouses and children of lawful permanent residents to apply for waivers of unlawful presence without leaving the U.S.
  • For F-1 foreign students eligible to work after graduation from a U.S. college or university:
    • Expanding the degree programs eligible for extended periods of work beyond 12 months
  • For foreign inventors, researchers, and founders of start-up enterprises:
    • Making the “national interest waiver” category available for permanent resident status
    • Offering temporary parole in the U.S. under the “significant public benefit” standard
  • Employers using the PERM process prior to sponsoring foreign workers for green cards:
    • Modernizing the process, including the possibility of expedited, premium processing
    • Identifying demonstrated shortages and surplusages

Building on the existing Deferred Action for Childhood Arrivals (DACA) program, through which young adults brought to the U.S. as children and lack status, the administrative relief plan has the following provisions.

  • Deferred Action for Parents (DAP).
    • Requirements for the parent
      • Have a U.S. citizen child (of any age); or
      • Have a lawful permanent resident child (of any age);
      • Arrived in the U.S. by January 1, 2010;
      • Have been continuously present in the U.S. since January 1, 2010;
      • Pass background checks;
      • Pay taxes (though evidence of payment of back taxes is not required).
    • Relief
      • Eligible to apply for deferred action, which will be granted for a 3-year period and can be extended.
      • Work authorization comes with the DAP approval.
    • Timing
      • The process should be available by Spring 2015.

 

  • Expansion of Deferred Action for Childhood Arrivals (DACA).
    • Requirements for the applicant
      • Arrived in the U.S. before turning 16 years old;
      • Arrived in the U.S. by January 1, 2010;
      • Have been continuously present in the U.S. since January 1, 2010;
      • Pass background checks.
    • Relief
      • Eligible to apply for deferred action, which will be granted for a 3-year period, and can be extended.
      • Work authorization comes with the DAP approval.
    • Timing
      • The plan is to have applications available by January 2015.

The administrative relief plan, a step in the right direction toward fixing our country’s broken immigration system, has the following limitations:

  • Neither DACA or DAP gives any immigration status.
  • Only temporary reprieve from deportation is available.
  • The programs do not grant green cards or citizenship.
  • They do not provide for any path to green cards or citizenship.
  • They are not available immediately.
  • Many undocumented persons will not be eligible.
  • The plan relies on the President’s prosecutorial discretion authority, recognizing that immigration enforcement is necessarily selective and that Congress funds capacity for about 400,000 deportations each year.

Nevertheless, the plan could expand the legal workforce by about four million.

Employers and businesses should be alert for opportunities to take advantage of the components of the plan.

Following are some highlights for the comprehensive bipartisan immigration reform bill introduced in the Senate on April 17, 2013.

H-1B Cap Raised, but New Restrictions on Temporary H-1B Workers.  In an effort promote market-based limits, the annual H-1B cap would be raised from 65,000 to 110,000, and would be adjustable upwards to as high as 180,000 per year if employer requests for H-1B workers rises.  The 20,000 additional H-1B slots currently available for U.S. Master’s degree graduates would be increased to 25,000, but would be limited to U.S. Master’s graduates in science, technology, engineering and math (STEM) fields only. 

However, the bill would also impose onerous new obligations and restrictions on U.S. employers hiring H-1B workers, reportedly including the following:

  • Higher wage obligations
  • Mandatory recruitment of U.S. workers and online posting for H-1B positions
  • Increased filing fees and limits on H-1B hiring for “ H-1B dependent employers” (more than 30 % of a company’s workforce are H-1B or L-1 employees)

Entrepreneur Start-up Visa.  The proposal offers up to 10,000 new temporary visas to entrepreneurs who create at least three jobs, raise at least $100,000 from angel investors, venture capitalists or other investment groups, and generate at least $200,000 in revenue.

Retirees and Snowbirds.  There is a “retiree visa” for purchasers for residences with $500,000 cash or more and also a provision for Canadian snowbird homeowners and renters. 

New Employment Eligibility Verification Obligations for U.S. Employers.  Within five years after the bill’s passage, all U.S. employers would be required to enroll in the E-Verify system.  Large employers would be required to enroll sooner, and mandatory enrollment would be phased in later for small businesses and certain industries (e.g. agriculture).  The bill would also incorporate “photo matching” into E-Verify screening for new hires, requiring employers to certify that the photograph on the identity document presented by the new hire exactly matches an identical photograph in the E-Verify system.

Merit-Based Point System.  A new merit-based option would make green cards available based on education, employment, length of residence, and other considerations.

Re-Allocation of Immigrant Visa Quotas to Clear Backlog.  The bill proposes various reforms to the current employment- and family-based immigrant visa quota system designed to reduce and eliminate visa processing backlogs.  Significant changes include, but are not limited to, the following:

  • Derivative spouses and children of principal immigrants in both employment- and family-based categories would be classified as “immediate relatives,” and no longer be counted toward numerical limits.
  • Many employment-based immigrants would no longer be counted toward annual numerical limits, including all EB-1 categories (extraordinary ability, outstanding professors/researchers, and multinational executives/managers), doctoral degree holders in any field, and some physicians.
  • EB-2 classification would be expanded to include a new sub-category for foreign nationals who earned U.S. Master’s or higher degrees in STEM fields during the past five years, and have an offer of employment in a STEM field.
  • Per-year numerical limits on EB-2 and EB-3 visas would be increased.

W Visa for Lower-Skilled Workers.  The bill proposes a new nonimmigrant, temporary worker category, a W visa for workers to perform services or labor.  It will require registration and certification:

  • The employer must register.
  • The position must be registered.
  • The worker must request and receive certification for W status. 

Employers will need to recruit for U.S. workers for 30 days.  20,000 W visas would be available starting in 2015, with the number increasing to 75,000 in 2019.

 “Blue Card” for Agricultural Workers.  Agricultural workers would be eligible for a new type of legal status work authorization card: a blue card.  Ag workers would not be tied to a single employer.  Wages would be set by the Department of Agriculture, instead of the Department of Labor.  The ag workers must have done the following:

  • Worked in the U.S. ag industry for at least 100 days in the two years prior to December 31, 2012
  • Pay a $400 fee
  • Paid their taxes
  • Have no criminal record

The bill caps the blue cards at about 112,000 for the first five years.  Blue card holders could be eligible for permanent legal residency in five years.

Registered Prospective Immigrant (RPI).  Current undocumented noncitizens could apply for “registered prospective immigrant” (RPI) status with valid work authorization under the following circumstances:

  • Presence in the U.S. since December 31, 2011
  • Passing a background check
  • Paying a $500 penalty fee
  • Paying taxes

RPI status would be available for six years and could be renewed for another $500.  Permanent resident status would be available after payment of an additional $1,000 fee and the following:

  • The border is sufficiently secure.
  • All individuals who are waiting for green cards when the bill is enacted have been processed, that is, those in the country without authorization to the “back of the line.”
  • The RPI possessed the status for 10 years.
  • Tax payments are up-to-date.
  • The RPI demonstrates knowledge of US civics and English.

Path to Residency or Citizenship

The bill does not provide a direct route to U.S. citizenship for those adjusting from unlawful status, but it does not prohibit applying for citizenship.

This week, both President Obama and the Senate announced frameworks for comprehensive immigration reform.  The following is a comparison of key elements in each of the plans.

Path to Citizenship

Similarities:  Neither plan permits a direct route to citizenship.  A foreign national must first become a permanent resident with a “green card,” and then wait, usually for three to five years more, before being eligible to apply for U.S. citizenship. 

Differences:  The Senate would create a commission of lawmakers and border-state leaders to assess when border-security measures have become effective.  Until then, the path would be closed.  However, before then, undocumented immigrants could remain in the United States lawfully by registering, passing background checks, being able to speak English, and paying back taxes and fines for their probationary legal status.

The Obama plan does not establish any border-assessment commission.  It offers provisional legal status and a green card under similar terms as the Senate:  registration, background checks, speaking English, and payment of fees and penalties.  Immigrants on provisional legal status would not be eligible for welfare or other federal benefits.  They would need to get in line for permanent residency and earned citizenship behind others already in the system.

Investors and Highly Skilled Immigrants

Similarities:  Both plans would award green cards to immigrants who obtain advance degrees in science, technology, engineering or math (STEM) from U.S. universities.

Differences:  The Obama plan would create a new category for highly skilled foreign workers in federal science and technology labs.  The Obama plan would create a start-up visa category for job-creating entrepreneurs, and it would expand visa opportunities for those who invest in the United States.

Agricultural Workers

Similarities:  Both plans would permit farm workers in the country without proper documentation to have a path to citizenship. 

Differences:  The Senate plan also would create an agricultural worker program and allow employers to hire immigrants if they can demonstrate that American workers aren’t available.

Same-Sex Couples

Differences:  The Obama plan would allow U.S. citizens and permanent residents to sponsor a same-sex partner for permanent resident status and temporary visas. 

Employment Verification

Similarities:  Both plans would mandate tha employers use electronic employment verification, such as E-Verify, for prospective workers – U.S. and foreign citizens alike – to demonstrate legal status and identity.

Differences:  The Obama plan would have exemptions for some small businesses.  It also would create a fraud-resistant social security card and non-forgeable documents for those without social security cards.

Immigration Law and the Military    Margaret Stock, Counsel to the Firm in the Anchorage, Alaska office, has published a new book, Immigration Law and the Military, which is available from the American Immigration Lawyers Association publications website.  The book describes the laws, regulations, and policies that apply to non-citizens serving in the United States military, as well as the foreign family members of US military personnel.  The book has chapters on the application of Selective Service laws to noncitizens, citizenship-related criteria for enlistment, military naturalization procedures, the immigration consequences of military disciplinary proceedings and courts-martial, and security clearance issues.  Readers will be interested in the section on the Military Accessions Vital to the National Interest (MAVNI) program, which allows certain legally-present noncitizens to join the US military and obtain US citizenship on an expedited basis.  A complete chapter is devoted to the process of applying for “parole in place” for non-citizen family members of US military members.

The book has an extensive index that provides updated materials on all these issues, including helpful checklists and copies of policy memoranda and other official materials that are difficult to find at a law library in online legal research services.

Earlier this year, the US Army issued a revised personnel regulation in which the Army announced that dual citizens of the United States and another country are not permitted to enlist in the Army, Army Reserve, or Army National Guard into jobs that require a security clearance “unless they already possess a security clearance.”  The regulation is important because it potentially bars millions of Americans from most Army jobs:  The vast majority of Army jobs require a security clearance–including officer appointments, Special Forces, Military Intelligence, and Military Police jobs, but also most others. 

Dual citizenship is something that millions of Americans possess, often inadvertently.  Whether a person holds citizenship in a particular country is a matter of that country’s law, not U.S. law, and one’s citizenship is thus not always within the control of the individual or the United States Government.  Although some countries allow their citizens to expatriate, others do not.  Some people are dual citizens because their parents or grandparents hold citizenship in a foreign country; others are dual citizens because they were born in another country.  The U.S. Office of Personnel Management has published “Citizenship Laws of the World,” a document that explains the wide variety of rules regarding citizenship.  Although this document is not completely up-to-date (some countries have changed their laws since it was published), it can give a reader a good idea of the potential problems posed by the Army’s personnel regulation.  According to OPM, for example, the country of Iran considers the children of male Iranian citizens to be Iranian citizens as well, and prevents them from renouncing Iranian citizenship–so any US-born child of an Iranian citizen is necessarily a dual citizen of the United States and Iran, and can’t rid himself of Iranian citizenship.  Should the US Army bar a young American of Iranian descent from serving in the US Army Special Forces, merely because his father is an Iranian immigrant to the United States?  One would hope not.

The Army’s regulation preventing all dual US citizens from enlisting in most Army jobs is a much broader bar than the military has previously applied.  Previously, dual citizenship did not prevent enlistment into any job and did not automatically bar a person from holding a security clearance; instead, security officials would evaluate each person’s case individually. Ironically, famous Americans such as George Washington, John F. Kennedy, John Shalikashvili, Marco Rubio, and even Barack Obama would likely have been barred from serving in most Army jobs had they attempted to join the US Army at a time when this regulation was in effect. 

The rule barring dual citizens from enlisting in most jobs also cedes American sovereignty to other countries, because it lets foreign countries control who can serve in the US Army.  As discussed above, a foreign country–not the United States–determines who is a citizen of that country.  When a foreign country determines that an American holds its citizenship, that American necessarily is a dual citizen of that country and the United States.  Barring these dual citizens from enlisting thus lets foreign countries use their citizenship laws to control which Americans can serve in the Army. Allowing foreign laws to control who gets to enlist in the US Army is clearly not in America’s national security interest.  Let’s hope that Army leaders reconsider their new rule at the first opportunity.

In July 2002, President George W. Bush issued an Executive Order invoking Section 329 of the Immigration & Nationality Act, which allows persons in the United States military to earn their US citizenship on an expedited basis if they serve honorably in wartime.  President Bush’s order, which is still in effect, was retroactive to September 11, 2001.  Under the Executive Order and its corresponding statute, there is no minimum period of lawful permanent residence required before a military member may apply for American citizenship, if the person has served after September 11, 2001.  If the person obtains US citizenship through military service and fails to serve honorably for five years, however, the Department of Homeland Security can try to revoke the person’s US citizenship.

As a result of the Executive Order and the ongoing conflicts in Iraq, Afghanistan, and elsewhere, and in cooperation with the Department of Defense, United States Citizenship & Immigration Services (USCIS) began its Basic Training Initiative.  Under this initiative, qualified military recruits are naturalized as American citizens when they graduate from military basic training.  The USCIS initiative began with the Army in 2009, and was then extended to the Navy and (most recently) the Air Force; the Marine Corps is not yet participating.  All active duty military members, as well as National Guard and Reserve members undergoing basic training, are eligible to participate.

Basic training naturalizations were common in prior wars, including World War II and the Vietnam War, and it makes sense that USCIS would make them possible in today’s conflict as well.  Basic training naturalizations save the government money, reduce potential legal problems for military personnel, and ensure compliance with the Military Citizenship Processing Act, a 2008 law that mandates the quick processing of military naturalization applications.