Visa Lawyer Blog

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This morning, Attorney General Jeff Sessions announced that the Trump administration is ending DACA, a program that began under former President Barack Obama, which allowed undocumented immigrants who came to the United States as children, the opportunity to obtain employment authorization and be shielded from deportation. This decision comes on the heels of swirling rumors regarding the President’s intent to terminate the program. Despite the President’s seemingly sympathetic attitude toward the plight of “Dreamers,” today’s announcement means that the DACA program will be phased out.

Effective immediately, USCIS will not accept new initial requests for DACA, but will allow current DACA recipients with permits expiring between now and March 5, 2018 to apply for a final 2-year renewal of their status and obtain employment authorization.

A conflicted President Donald Trump issued a statement following the announcement in which he defended his decision stating, “in the best interests of our country, and in keeping with the obligations of my office, the Department of Homeland Security will begin an orderly transition and wind-down of DACA, one that provides minimum disruption. While new applications for work permits will not be accepted, all existing work permits will be honored until their date of expiration up to two full years from today. Furthermore, applications already in the pipeline will be processed, as will renewal applications for those facing near-term expiration. This is a gradual process, not a sudden phase out. Permits will not begin to expire for another six months, and will remain active for up to 24 months. Thus, in effect, I am not going to just cut DACA off, but rather provide a window of opportunity for Congress to finally act.”

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As previously reported, the Visa Waiver Program Improvement and Terrorist Prevention Act of 2015, was a bill that was signed into law at the end of 2015, which imposed new restrictions on the use of the Visa Waiver Program (VWP) for certain travelers. In this post, we update our readers regarding new information provided by CBP in their newly updated FAQ page.

What is the Visa Waiver Program?

The Visa Waiver Program allows citizens of designated countries to apply for admission to the United States as visitors (traveling for holiday, business, or in transit) without having to obtain a non-immigrant B1/B2 visa at a U.S. Embassy or Consulate abroad, using a system known as ESTA or Electronic System for Travel Authorization.

To be eligible to travel to the United States under the visa waiver program, you must be a citizen of one of thirty-eight countries eligible to participate in the program, you must have a valid machine-readable passport issued by the participating country that is valid for at least 6 months before your planned departure, you must apply for and have an approved ESTA before your proposed travel, and you must intend to remain in the United States for 90 days or less.

You may not be eligible to travel under the VWP if you have been denied a U.S. visa in the past, or have an immigration violation. In this case, you must apply for a visitor visa at a U.S. Consulate abroad, even if your country participates in the VWP.

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On Monday, March 6, 2017 President Donald Trump rolled out a newly revised version of the executive order “Protecting the Nation From Foreign Terrorist Entry Into the United States” following the Ninth Circuit Court of Appeals refusal to reinstate the controversial order that was originally released on January 27, 2017.  The January 27th order had called for a blank travel ban on citizens of seven Muslim majority countries, temporarily barring them from gaining admission into the United States for a period of 90 days, irrespective of their legal status in the United States. These seven Muslim majority countries were deemed “countries of particular concern” by the Trump administration based upon the Department of State’s reports designating these countries as countries presenting heightened security risks to the United States. In addition, in the original order, Donald Trump had called for a temporary 120-day suspension of the U.S. Refugee program preventing refugees from entering the United States, and finally the order suspended the Syrian refugee program indefinitely. These controversial measures threw the country into chaos as thousands of demonstrators flooded airports across the country to show their solidarity for the citizens of the seven Muslim majority countries affected by the order. The order was especially controversial because it affected all non-immigrants including immigrants with valid United States visas, as well as permanent residents. Although these measures were overruled by the Ninth Circuit Court of Appeals in February, the Trump administration has shown that it will not be discouraged by their actions.

In his new executive order, Donald Trump has scaled back the language used in the first executive order removing provisions that indefinitely banned Syrian refugees from seeking admission to the United States, and language which prioritized the admission of religious minorities persecuted in the Middle East. US officials will no longer prioritize religious minorities when considering applications for refugee admission. The new order calls for a travel ban blocking citizens from six Muslim majority countries including Syria, Iran, Libya, Somalia, Sudan, and Yemen from applying for and obtaining visas for a period of 90 days. The order leaves in place a temporary travel ban blocking the admission of refugees into the United States for a period of 120 days to allow more stringent vetting procedures to be put in place. The executive order removes Iraq from the list of Muslim majority countries, whose citizens will no longer be prevented from seeking admission to the United States.

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Reports have recently surfaced revealing that a Dreamer, 23-year-old Daniel Ramirez Medina, has been arrested and is currently in the custody of Immigration and Customs Enforcement Agents in Seattle, Washington. Medina was brought to the United States when he was only 7 years old and maintains Mexican nationality. In 2014, Medina first applied for the Deferred Action for Childhood Arrivals (DACA) program and was approved after satisfying the specific and rigorous criteria outlined by DHS qualifying him for the program. As part of the routine application process, Medina underwent an extensive background check, and was cleared by USCIS, resulting in the approval of his application for Deferred Action. The approval granted him the opportunity to remain in the United States under lawful “deferred status” for a 2-year period, subject to renewal. Two years later, Medina applied for a renewal of his deferred action status, and was approved for a second time, granting him an additional two-year period of “deferred action.” Medina underwent a second background check as part of the renewal process, and again was cleared.

On February 10, 2017, Immigration and Customs Enforcement agents arrived at the home of Ramirez’s father with an arrest warrant to detain his father. His father granted ICE officers permission to enter the home so that they could inform his sons about his arrest. ICE agents questioned Daniel Ramirez asking him if he was lawfully present in the United States. Daniel notified the agents that he was lawfully present and had a work permit. His brother, also a DACA recipient, who was present during the immigration raid, suggested that he remain silent and decline to answer additional questions. Ramirez was then arrested and detained by ICE agents, although Ramirez presented the agents with his employment authorization card that was issued pursuant to his approval under the DACA program, and clearly identified him as a DACA recipient with a ‘C-33’ classification code. Ramirez also told the officers several times that he was a DACA recipient lawfully present in the United States.

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Last week, United States Immigration and Customs Enforcement (ICE) launched a series of immigration enforcement operations nationwide, otherwise known as “raids” to crack down on illegal immigration. The operations took place over a five-day period in the metropolitan cities of Los Angeles, Chicago, Atlanta, San Antonio, and New York City, and resulted in the arrest of more than 680 individuals. According to the Department of Homeland Security, these raids were targeted at convicted criminals unlawfully present in the United States, persons who are a threat to our public safety, including gang members, and “individuals who have violated our nation’s immigration laws” by illegally re-entering the country after having been removed, including fugitives who could not be found after having been ordered removed by federal immigration judges. Additionally, DHS reported that of those who were arrested, approximately 75 percent were criminal aliens, convicted of crimes including “homicide, aggravated sexual abuse, sexual assault of a minor, lewd and lascivious acts with a child, indecent liberties with a minor, drug trafficking, battery, assault, DUI and weapons charges.”

Communities across the United States went into uproar, after reports began pouring in that hundreds of non-threatening individuals including mothers and children were being taken into custody and removed from the United States during these operations. One of the first such individuals to be arrested was Guadalupe Garcia de Rayos, a Mexican mother of two U.S. Citizen children, who was detained by ICE at a routine check point in Phoenix, after having lived 20 years in that state. Garcia de Rayos had come to the United States illegally as a child. She was arrested during a 2008 raid on her Arizona workplace on suspicion that the business was hiring undocumented immigrants using fraudulent IDs. Garcia de Rayos was taken into custody six months later, when investigators discovered discrepancies in her employment documents. She pled guilty in 2009 to criminal impersonation and was sentenced to 2 year’s probation. Despite these offenses, Guadalupe was considered to be a “low priority” of enforcement and was required to check in with immigration officials.

After news broke of her arrest, the Mexican Foreign Ministry issued a statement urging Mexican nationals to contact the Mexican consulate for immigration assistance, information relating to their immigration rights, and protections offered to them by the Center for Information and Assistance to Mexicans (CIAM). According to the Foreign Ministry, Mexican consulates in the United States have allocated additional resources to protect the rights of Mexican nationals. The Foreign Ministry added that they anticipate these immigration raids will increase in severity and are likely to violate the due process of rights of Mexican nationals.

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Following a dramatic turn of events, on Friday, February 3, 2017, a federal judge from the Western District of Washington, issued a Temporary Restraining Order (“TRO”) halting enforcement of the President’s Executive Order entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” nationwide. The temporary restraining order was issued in response to an emergency motion filed by the state of Washington and Minnesota. The states collectively filed the motion seeking declaratory and injunctive relief against the controversial executive order which bans the entry of immigrant and non-immigrant foreign nationals from seven Muslim-majority countries (Syria, Iraq, Iran, Libya, Somalia, Sudan, and Yemen) for a 90-day period, suspends the U.S. Refugee Admissions Program for a 120-day period, and terminates the Syrian refugee program indefinitely.

In his ruling, Judge Robart stated that after hearing arguments, the States adequately demonstrated that they have suffered immediate and irreparable harm because of the signing and implementation of the order, and that granting a TRO would be in the public interest. In addition he stated “the Executive Order adversely affects the States’ residents in areas of employment, education, business, family relations, and freedom to travel. These harms extend to the States. . . are significant and ongoing.” A three-judge panel from the Ninth Court Court of Appeals is expected to issue a final ruling on the Executive Order tomorrow.

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In today’s post, we will discuss how green card holders may be affected by President Trump’s Executive Order imposing a temporary travel ban on foreign nationals of seven Muslim-majority countries (Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen), including green card holders as well as non-immigrants. Since the release of the Executive Order, several courts have issued temporary injunctions preventing green card holders (LPRs), legally authorized to enter the United States, from being detained and/or removed from the United States until a federal court can decide the constitutionality of the orders.

In response to these court orders, the Department of Homeland Security and Customs and Border Protection (CBP) has provided further guidance on the enforcement of these actions, and the impact on green card holders from these seven Muslim-majority countries. While both agencies have indicated that they are complying with the court orders, the consensus is that immigration officials will continue to enforce President Trump’s Executive Orders, and they will continue to remain in place.

What does this mean for green card holders? The Secretary of the Department of Homeland Security has stated that the entry of lawful permanent residents remains in the national interest, therefore “absent receipt of derogatory information indicating a serious threat to public safety and welfare,” lawful permanent resident status will be a deciding factor in allowing an LPR entry. The entry of lawful permanent residents will continue to be discretionary and green card holders will be evaluated on a case-by-case basis.

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Yesterday, January 29, 2017 the Department of Homeland Security released a statement regarding President Trump’s executive order “Protecting the Nation from Terrorist Attacks by Foreign Nationals” which barred the entry of both immigrant and non-immigrant foreign nationals from 7 majority Muslim countries and suspended entry of Syrian refugees until proper vetting and security mechanisms could be put in place. The Department commented on the impact of a federal court order issued Saturday night which temporarily suspends enforcement of the executive order, until a federal judge can rule on its legality.

In their statement, the Department of Homeland Security noted that “upon issuance of the court order . . . U.S. Customs and Border Protection (CBP) immediately began taking steps to comply with the orders. Concurrently, the Department of Homeland Security continues to work with our partners in the Departments of Justice and State to implement President Trump’s executive order on protecting the nation from foreign terrorist entry into the United States. We are committed to ensuring that all individuals affected by the executive orders, including those affected by the court orders, are being provided all rights afforded under the law.  We are also working closely with airline partners to prevent travelers who would not be granted entry under the executive orders from boarding international flights to the U.S. Therefore, we do not anticipate that further individuals traveling by air to the United States will be affected.”

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On Saturday night, a federal judge granted an emergency stay on Donald Trump’s executive order “Protecting the Nation from Terrorist Attacks by Foreign Nationals” which temporarily bans the entry of immigrant and non-immigrant foreign nationals from Syria, Iraq, Iran, Libya, Somalia, Sudan, and Yemen for a 90-day period. The stay filed by the American Civil Liberties Union, on behalf of two Iraqi men detained at New York’s John F. Kennedy airport, prevents immigration authorities from detaining foreign nationals from the 7 Muslim majority countries, who have already arrived on U.S. soil, as well as those mid-flight. The stay does not invalidate the executive order signed by Trump, but limits its enforcement on individuals who have already arrived in the United States. Individuals who have attempted to enter on valid visas, refugee status, or LPR status must be released from detention. Trump’s temporary ban on immigrants and non-immigrants from these countries sent the country into chaos, as protestors swarmed international airports across the nation calling for an end to the ban and the release of persons detained. U.S. Customs and Border Protection, and law enforcement officials are struggling with the executive order, absent clear policy and guidance from the Department of Homeland Security.

This is a developing story. More information soon. 

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President Donald Trump is expected to hand down a controversial Executive Order on immigration within the coming days to protect the nation from terrorist attacks by foreign nationals. Although the Trump administration has not made a formal announcement regarding the proposed order yet, a leaked, unsigned copy of the President’s order has been making the rounds. We do not know whether the President has made any modifications to the order since its leak, and we do not know when exactly the order will be issued. One thing is clear, an executive order on immigration is imminent. It is rumored that the executive order will include a temporary ban on refugees, the suspension of issuance of visas for citizens of Syria and six other Middle Eastern and African countries, which are rumored to include Iraq, Iran, Libya, Somalia, Sudan and Yemen, collectively referred to as “countries of particular concern,” as well as the end of Syrian refugee processing, and the visa interview waiver program.

The passage of such an executive order although extremely controversial and unpopular, would be within the President’s executive power, if his administration determines that limiting refugee admissions temporarily and restricting the issuance of visas to persons from specific countries is of significant public interest to the United States to combat the war on terror. The administration would need to balance our country’s need to secure its borders against terrorism with the need to resolve the global humanitarian crisis we face today. Donald Trump has already passed a series of executive orders on border security and immigration enforcement authorizing the construction of a U.S.-Mexico border wall, withholding federal grant money for sanctuary cities, hiring 5,000 Border Patrol agents, reinstating local and state immigration enforcement partnerships, and ending the “catch-and-release” policy for undocumented immigrants.

The leaked copy of the executive order “Protecting the Nation from Terrorist Attacks by Foreign Nationals” gives two policy reasons for enacting the executive order. First, the purpose of the order is to protect American citizens from foreign nationals who intend to enter the United States to commit acts of terrorism. Second, the order serves to prevent the admission of foreign nationals who intend to enter the United States to “exploit” the country’s immigration laws for malevolent purposes. The order highlights that following the September 11 attack on the World Trade Center, hundreds of foreign nationals have successfully entered the United States on an asylum, visitor, student, or employment visa, and have been subsequently convicted or implicated in terrorism related crimes. The order goes on to blame the State Department’s consular officials for their failure to scrutinize the visa applications of the foreign nationals who went on to commit the September 11 attacks, which resulted in the deaths of thousands of Americans.

The main provisions of the leaked order “Protecting the Nation from Terrorist Attacks by Foreign Nationals” are as follows:

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