Visa Lawyer Blog

Articles Posted in Travel Restrictions

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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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With only three days left until enforcement of President Donald Trump’s newly revised executive order “Protecting the Nation from Foreign Terrorist Entry into the United States,” Democratic legislators and immigration advocacy groups are rushing to file litigation in opposition of the new order. Although the new executive order has removed some of its controversial provisions, the essential components of the original order have remained the same. For example, the order continues to call for a 90-day travel ban on citizens of Syria, Iran, Libya, Somalia, Sudan, and Yemen who are outside of the United States on March 16, 2017 and who do not possess a valid U.S. visa or permanent resident card as of the date of the order. The order also calls for a travel ban on all refugees and suspension on all decisions for applications for refugee status for 120-days.

The new order has now removed Iraq from the list of countries affected by the travel ban and has removed the provision banning the admission of Syrian refugees indefinitely. The language of the newly revised version also makes clear that citizens of these 6 affected countries, who are legal permanent residents or who have valid U.S. visas as of the date of the order, will not be prevented from seeking admission to the United States. Citizens of these countries who do not already have a U.S. visa or green card on the date of the order will not be admitted until the temporary ban has been lifted. In addition, the new order exempts foreign nationals who are admitted into the United States on or after March 16, 2017, as well as dual nationals traveling on a passport issued by an unaffected country, and individuals traveling on diplomatic visas. The order also carves out a provision that allows qualifying individuals to apply for a waiver if they can demonstrate to the satisfaction of the US official that their country would cause them undue hardship or that that they are not a threat to national security, and that their admittance is in the national interest. It seems however that these waivers will be rarely issued and difficult to obtain, unless the U.S. official determines that the foreign national’s admittance is in the national interest.

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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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Ninth Circuit Court of Appeals San Francisco, CA

A three-judge panel from the Ninth Circuit Court of Appeals has unanimously ruled that the President’s Executive Order “Protecting the Nation from Foreign Terrorist Entry into the United States” banning the entry of immigrants and non-immigrants from seven Muslim-majority countries will not be reinstated. The Court refused to reinstate the Order after hearing oral arguments from the solicitor general of Washington state arguing for the states of Washington and Minnesota, and counsel from Washington D.C. The panel was tasked with reviewing a temporary restraining order (“TRO”) that was handed down by a federal judge from Seattle, an order which brought President Trump’s Executive Order “Protecting the Nation from Foreign Terrorist Entry into the United States” to a screeching halt. Since then several lawsuits have been filed against the President’s executive order and are making their way through the courts.

The Court considered four central questions before reaching their decision:

  • Whether the stay applicant “Government” has made a strong showing that he is likely to succeed on the merits;
  • Whether the applicant “Government” will be irreparably injured absent a stay;
  • Whether issuance of the stay will substantially injure the other parties interested in the proceeding and;
  • Where the public interest lies.

The Court concluded that the government failed to satisfy the first questions, and that arguments made by the government’s attorney in support of the last two questions did not justify the issuance of a stay to lift the temporary restraining order and reinstate the Executive Order. The Court reasoned that the government failed to show that it would be likely to succeed on appeal, noting the seriousness of the allegations raised by the States regarding religious discrimination and significant constitutional questions. In a powerful statement the Court noted that “the government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States.” The Court further stated that the States “offered ample evidence that if the Executive Order were reinstated even temporarily, it would substantially injure the States and multiple other interested parties.”

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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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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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In this segment, we answer 5 of your most frequently asked questions received from our social media platforms and website. Please remember that every case is different and every immigration journey is unique. You should not compare your situation to anyone else’s. We hope that our answers will provide you with further guidance while you embark on your immigration journey. If you have any further questions, please call our office to schedule a free first time consultation. We serve international clients and domestic clients in all 50 states. We thank you for your continued trust in our law office. Do you want us to answer your question in a future segment? Please email nathalie@h1b.biz. For more information on the services we offer please click here.

Immigrating a Foreign Spouse: Incorrect Filing of the I-130

Q: I am currently at an impasse with my wife’s immigration process. We have moved on to the NVC stage of the process, and they have notified us that they will tentatively schedule her for her immigrant visa interview in her home country, although she is currently in the US on an expired visa. Thus-far, her I-130 petition has been approved and they denied the I-129 because of the approval. How can I get the interview location changed to the US without paying for and submitting the I-485?

A: Thank you for your question. More information is needed from you to fully assess your wife’s case such as a complete copy of the I-130 petition that was filed with USCIS. It appears that at the beginning of her case you elected to begin consular processing to immigrate your wife to the United States, and she later traveled to the United States while her I-130 petition was pending with USCIS. As you know, the first step of the consular process to immigrate a foreign spouse, requires you to file the I-130 petition for alien relative. This brings us to the main problem. The I-130 petition is the petition that determines where your wife will be interviewed, whether it be for adjustment of status in the United States, or to obtain an immigrant visa. In other words, the I-130 petition is intimately tied to the location where she will have her interview. On Part C. Item number 22 of the I-130 petition, USCIS specifically asks you to provide complete information regarding whether your relative is in the United States and will apply for adjustment of status, or whether your relative is not in the United States and will instead apply for a visa abroad at an American consular post or embassy abroad. If you responded that your relative was not in the United States and would apply for an immigrant visa abroad at the time of filing, it would be a very rare circumstance that USCIS would allow a change of venue for her interview.

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Our clients often ask us what the difference is between adjusting their status within the United States versus applying for a green card at a United States consulate abroad. In order to adjust your status to permanent resident within the United States by filing Form I-485, you and your spouse must be living inside of the United States at the time of filing. The intending immigrant must also have entered the United States legally in order to adjust status within the United States, although there are few exceptions (as is the case of individuals who qualify for 245i). This means that generally, in order to qualify for adjustment of status, you must have been inspected by a U.S. Customs official at a United States port of entry. As part of the Adjustment of status process, the green card applicant must be able to prove that they were inspected upon entry by showing their I-94 arrival/departure record. The I-94 is a small white paper that is placed in the passport containing a stamp of admission with the date of entry, place of entry, the person’s name, I-94 number, and other important details.

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Sample I-94 arrival/departure record

If you did not receive a paper I-94 in your passport, you may obtain your I-94 electronically by visiting the DHS website.

Consular processing on the other hand is an option that is typically utilized for spouses of US Citizens residing abroad and/or foreign spouses who have never visited the United States, do not have a United States visa, or cannot obtain one, because they are already married to a US Citizen. Foreign spouses who are obligated to travel frequently such as businesspersons may also prefer to obtain an immigrant visa through ‘consular processing’ because this process does not prohibit international travel. Adjustment of status applicants on the other hand are prohibited from traveling internationally once the I-485 green card application has been filed, unless they have received travel permission from USCIS known as an advance parole document. If the applicant travels without this advance parole document, the I-485 application will be considered abandoned.

Advance Parole for Adjustment of Status Applicants

In order to receive this advance parole document, the applicant must file Form, I-131 Application for Travel Document at the same time as Form, I-485 in order to return to the United States after temporary foreign travel. If the applicant wishes to apply for a work permit they must also file Form, I-765 Application for Employment Authorization. There is no additional fee for the I-131,765 applications if the applicant has a pending I-485 application with USCIS. The I-131,765 applications take approximately 90 days to process from date of filing and culminate in a travel/work permit combo card known as the EAD (Employment Authorization Document). This document allows the applicant to work, travel, obtain a SSN number, and driver’s license. Consular Processing applicants do not receive any travel or employment authorization and cannot obtain a driver’s license or SSN until they have received their green card once they enter the United States with an immigrant visa.

Adjustment of Status Benefits

There are many benefits that come with adjusting your status within the United States however to qualify you and your spouse must be living in the United States and you must have been inspected upon entry to the United States (with few exceptions), otherwise you are not eligible to apply for adjustment of status within the United States. If you have committed any immigration violations or have a serious criminal history, you must consult an attorney.

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Before filing your green card application, it is important for you to carefully consider several important factors that may limit your ability to obtain employment in the United States and restrict your international travel. If you will be filing your green card application in the near future, you need to be prepared to remain in the United States for a period of at least 90 days, from the date of filing of your green card application. Applicants must also be aware that they will not receive authorization to work in the United States until this 90-day period has passed. Limited exceptions exist which may allow an applicant to expedite the adjudication process of the employment and travel authorization applications which we will discuss below.

Why the 90-day restriction period?

As part of the green card application, the applicant may file the I-765 Application for Employment Authorization and the I-131 Application for Travel Document at no additional cost. The I-765 and I-131 applications result in the issuance of a one-year temporary employment and international travel authorization card (EAD), while the green card application is being adjudicated by USCIS. It takes on average 90 days for the EAD card to be issued, from the date of filing of the green card application. This ultimately means that once you apply for permanent residence, you will not be able to seek employment or travel outside of the country until the EAD card is issued to you within 90 days. Once the green card application has been filed with USCIS, the applicant is restricted from any international travel. If the applicant travels without authorization, USCIS will consider the applicant’s green card application ‘abandoned.’ An applicant may only travel internationally if they have received a re-entry permit issued by USCIS known as an ‘advance parole’ document. The ‘advance parole’ notice will appear on the front of the EAD card itself signifying that the applicant is authorized to travel internationally using the card.  The ability to re-enter the United States after returning from temporary foreign travel is ‘discretionary.’ This means that even if you have been issued an EAD card that allows you to travel, it will ultimately be up to the customs official to admit you into the United States.

Consider the alternatives

Before applying for your green card you should carefully consider whether these travel and employment restrictions will have a significant impact on your lifestyle. If the travel restrictions are concerning to you, it may be a more beneficial option for you to apply for an immigrant visa from a U.S. Consulate abroad. There are no travel restrictions for applicants who apply for immigration benefits from abroad. Likewise, if you are concerned that you will not receive employment authorization immediately, it may be worth considering applying for a dual intent work visa first to cover any gaps in employment. There are limited work visa categories that allow for dual intent, or the intent to have a temporary visa status at the same time as having the intent to remain permanently in the United States. If this is the case, you should consult with an attorney to discuss your options.

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