Visa Lawyer Blog

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On Monday morning, the United States Supreme Court announced that it will hear arguments for and against the President’s controversial executive order, “Protecting the Nation from Foreign Terrorist Entry into the United States,” otherwise known as the “travel ban,”when it reconvenes in October of this year. The President’s executive order seeks to block the admission of foreign nationals from 6 predominantly Muslim countries (Syria, Sudan, Somalia, Iran, Libya, and Yemen) for a period of 90 days, and suspend the admission of refugees for a period of 120 days.

This announcement sets in motion the end of a long legal battle challenging the scope of the President’s executive power on immigration. This Fall, the Court will be tasked with determining whether the ban violates the establishment clause of the U.S. Constitution, as well as key provisions of the Immigration and Nationality Act, signed into law by Congress.

In the meantime, the Supreme Court has announced, in their per curiam opinion, that a limited version of the President’s executive order will remain in effect, until the Court makes its final ruling. In their opinion, the Court ruled that foreigners who have no ties or relationships in the United States may be prohibited from entering the country. This would include individuals applying for visas who have never been to the United States, or have no family, business, or other ties.

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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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The United States Court of Appeals for the Fourth Circuit has handed down a ruling this morning, dealing yet another blow to the President’s embattled travel ban. The Court has refused to reinstate the President’s 90-day travel ban on Muslims from Iran, Syria, Sudan, Libya, Somalia, and Yemen and the 120-day travel ban on refugees. The Virginia court held that the President’s travel ban does not pass constitutional muster, given that it violates the establishment clause of the United States Constitution. The ruling upholds a lower court’s decision to block the President’s revised travel ban. The Fourth Circuit was forced to weigh the importance of the President’s travel ban in relation to our national security against potentially impinging on a person’s freedom of religion. In their decision, the Fourth Circuit stated that they did not believe that the President’s executive order “has more to do with national security than it does with effectuating the president’s proposed Muslim ban.”

As we previously reported, during the month of March, the President revised his travel ban after the Ninth Circuit Court rejected major portions of the travel ban declaring it unconstitutional. The President revised the travel ban hoping that the revised version would pass constitutional muster and would not be blocked by the federal courts. The revised executive order which was set to go into effect March 16, 2017, called for a 90-day travel ban on non-immigrants of six Muslim countries including Syria, Libya, Iran, Somalia, Sudan, and Yemen, and a 120-day travel ban on the admission of refugees into the United States.

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Today, March 30, 2017, a federal judge from the state of Hawaii extended a court order blocking the President’s new travel ban from being enforced. In a 24-page decision, Judge Derrick Watson of Hawaii issued a preliminary injunction bringing the President’s executive order to a screeching halt indefinitely. Judge Watson first gained national attention two weeks ago, following his issuance of a temporary restraining order or TRO, which prevented the federal government from enforcing all provisions of the travel ban for a 14-day period. Watson’s TRO was meant to provide temporary relief pending further litigation. The state of Hawaii asked the judge to convert the TRO into a longer-lasting form of relief known as a preliminary injunction, at least until a higher court could issue a permanent ruling. The President’s embattled executive order sought to prevent the admission of foreign nationals from 6 Muslim majority countries including Syria, Somalia, Sudan, Iran, Libya and Yemen, for a 90-day period as well as the admission of Syrian refugees for a 120-day period.

In his decision Judge Watson wrote that he based his grant of the preliminary injunction on the strong likelihood that the state of Hawaii would succeed in proving that the travel ban violated the establishment clause of the U.S. Constitution which protects freedom of religion. In addition, the state of Hawaii successfully argued that absent the provisional relief, citizens of the state would be irreparably harmed. Attorneys for the state added that the state’s national economy would suffer in the absence of relief, and that its state universities would also be harmed by the President’s executive order in both the state’s ability to retain and recruit foreign born students and faculty.

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In this series, our office brings you up to speed on all things immigration.

Reminders for H-1B applicants for Fiscal Year 2018

Beginning April 3, 2017 USCIS will begin to accept cap-subject H-1B petitions for fiscal year 2018. USCIS has recently announced that premium processing has been temporarily suspended beginning April 3, for a 6-month period, that means that petitioners CANNOT file Form I-907 request for premium processing while premium processing has been suspended. As a reminder, for the general cap (U.S. bachelor’s degree holders or the foreign equivalent) only 65,000 H-1B visas are available per fiscal year, while 20,000 H-1B visas have been allocated for the advanced degree exemption (U.S. Master’s degree holders or higher level of education). Our office has estimated that this H-1B season, advanced degree holders will have a 65 to 70% chance of being selected in the lottery, while individuals qualifying for the general U.S. bachelor’s cap will have a 35 to 40% chance of selection.

For more information about the H-1B visa please click here.

I-130 Consular Processing

If you have applied for an immigrant visa with the National Visa Center, a process that is also known as consular processing, and you are preparing your civil documents for shipment to the National Visa Center or for your immigrant visa interview, please be aware that the Department of State has recently made changes to the Country Reciprocity tables, requiring new or additional documents for certain foreign nationals depending on their country of nationality. All original civil documents must be presented at the immigrant visa interview by the intended beneficiary.

To view the updates please click here.

To review the complete Visa Reciprocity Table, please click here.

What is happening with Trump’s Muslim Travel Ban and what is a Temporary Restraining Order?

Trump’s revised executive order banning the admission of foreign nationals from 6 Muslim-majority countries (Syria, Somalia, Sudan, Libya, Iran, and Yemen) and the admission of refugees is currently on hold. A federal judge from the state of Hawaii has issued what is known as a TRO or Temporary Restraining Order.

What is a TRO?

A TRO is a provisional form of relief granted by the federal courts that prevents a party from doing a certain thing so that the moving party does not suffer harm. The relief provided by a TRO is immediate, because the order is only granted under emergency circumstances. A TRO goes into effect for 14 days and can be extended for another 14 days (maximum 28 days). A TRO is not permanent.

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On Wednesday March 15, 2017, a federal judge from the state of Hawaii issued a Temporary Restraining Order in opposition of President Donald Trump’s new executive order “Protecting the Nation from Foreign Terrorist Entry into the United States” which was set to go into effect today Thursday, March 16, 2017. This will be the second time the President’s executive order has been blocked by a federal court. Among its major provisions the new executive order which was set to go into effect today, called for a 90-day travel ban on non-immigrants of six Muslim countries including Syria, Libya, Iran, Somalia, Sudan, and Yemen, and a 120-day travel ban on the admission of refugees into the United States. The executive order had been re-drafted by the Trump administration following the Ninth Circuit Court’s ruling invalidating all provisions of the executive order nationwide. To salvage the provisions of the executive order and make good on his campaign promise to eradicate terrorism, the President and his administration attempted to improve the order by removing controversial provisions within the order, affecting legal permanent residents, as well as non-immigrants with valid U.S. visas, otherwise authorized to gain admission to the United States. The order also removed Iraq as one of the countries affected by the order and removed a provision terminating the admission of Syrian refugees into the United States.

In what seems like déjà vu, the new executive order has once again been opposed first by a federal judge in Hawaii, and in a separate action by a federal judge from the state of Maryland who has blocked the 90-day travel ban from being implemented on citizens of the six Muslim majority countries nationwide. In their decisions, both judges mentioned President Trump’s statements during his presidential campaign which called into question the constitutionality of the executive order and its violation of the Establishment Clause. Specifically, President Trump has previously said that terrorism is linked to the Muslim religion, and his administration has identified the six Muslim countries outlined in the order as countries whose citizens have committed terrorist crimes in the United States. The Court has been concerned with the discriminatory effect of the executive order in targeting Muslims. The federal judge from the state of Hawaii noted that the state has “met their burden of establishing a strong likelihood of success on the merits of their Establishment clause claim, that irreparable injury is likely if the requested relief is not issued, and that the balance of the equities and public interest counsel in favor of granting the requested relief.” For those reasons, the Court found that a Temporary Restraining Order blocking all provisions of the order was appropriate.

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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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