U.S. SUPREME COURT ALLOWS THE THIRD TRAVEL BAN TO GO AHEAD

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The U.S. Supreme Court allowed the third version of Trump’s travel ban to go into full effect on Monday. This latest travel ban was signed by President Trump on September 24 and puts varying restrictions on U.S. visas for people from eight different countries: Iran, Chad, Libya, Venezuela, Somalia, Yemen, Syria, and North Korea.

Unlike previous version of the travel ban, the visa restrictions in the September 24 travel ban will not automatically expire after a certain period of time. The restrictions are strict, but the U.S. government is authorized to grant discretionary waivers for visas for restricted individuals on a case-by-case basis.

These waivers are based on particular circumstances, such as having relatives that live in the U.S. or needing to return to continue university studies in the U.S.

Several citizens and civil rights groups quickly filed lawsuits against the September 24 travel ban. The plaintiffs have argued that the restrictions were discriminatory to Muslims and that President Trump has exceeded his legal authority. On October 17 lower federal courts in Hawaii and Maryland put partial blocks on implementation of the travel ban.

Monday’s decision by the Supreme Court does not directly affect the lawsuits in Hawaii and Maryland.

These cases are still proceeding and are scheduled for additional arguments in intermediate level courts later this week. However, the Supreme Court’s decision does mean that the visa restrictions will be enforced while the lawsuits continue. The lawsuits in the lower courts are likely to be reviewed again by the Supreme Court later.

As has happened since Trump issued his first travel ban in January 2017, the scope and implementation of the September 24 travel ban are likely to continue to change in the future.

TRUMP WANTS TO END THE DIVERSITY VISA LOTTERY PROGRAM

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On November 1, President Trump announced his desire to end the diversity visa lottery program. This was in response to the terrorist attack in New York City the day before, which killed eight people and injured 12. The man who committed the attack was born in Uzbekistan and entered the U.S. through the diversity visa lottery program in 2010.

The diversity visa lottery is a system which awards U.S. immigrant visas to 50,000 people per year, selected randomly, from countries which have had low levels of immigration to the U.S. previously. Unlike other ways of immigrating to the U.S., a diversity visa does not require sponsorship from a relative or employer in the U.S. Diversity visa applicants are subject to a security review by the Department of State.

President Trump said he would ask the United States Congress to begin work to eliminate the program. The President cannot eliminate the program without assistance from Congress. Congress passed the diversity visa lottery law in 1990 as a way to encourage more diversity in the immigrant population coming into the country.

Iranians were the largest recipients of diversity visas in 2015, followed by Nepalese, Ukrainians, Uzbeks, and Russians.

U.S. SUPREME COURT DISMISSES ONE OF THE LAWSUITS AGAINST TRUMP’S ORIGINAL TRAVEL BAN

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On October 10, 2017, the U.S. Supreme Court dismissed the lawsuit brought by the International Refugee Assistance Project (“IRAP”) against the original travel ban announced by President Trump in January. The Court wrote that there was no reason to continue the lawsuit because the travel ban IRAP was challenging expired on September 24.

There is still one other active lawsuit against the January travel ban in front of the Supreme Court, which was brought by the State of Hawaii. However, the Supreme Court could still decide to dismiss the Hawaii lawsuit, like it dismissed the IRAP lawsuit.

The Supreme Court chose to dismiss the IRAP lawsuit even though IRAP attempted to update its lawsuit on October 5 by adding new arguments against the new September 24 travel ban. Hawaii has also updated its lawsuit to include the September 24 travel ban, and has asked a lower court to block the new travel ban.

There are at least three new lawsuits against the September 24 travel ban that have been filed by non-profit groups and individuals harmed by the travel ban. These cases are still at the lowest court level and have not reached the Supreme Court yet.

Original Sources:
Justices End One Immigration Ban Row After Order Expires (October 10, 2017)
https://www.law360.com/articles/973162

Justices end 4th Circuit travel-ban challenge (October 10, 2017)

Justices end 4th Circuit travel-ban challenge

Trump’s Travel Ban Hit With New Legal Challenges (October 10, 2017)
https://www.law360.com/articles/972736

Hawaii Asks Judge to Block Trump’s Latest Travel Ban (October 11, 2017)

Hawaii Asks Judge to Block Trump’s Latest Travel Ban

The New US Travel Ban

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WHAT U.S. EMPLOYERS AND THEIR FOREIGN EMPLOYEES SHOULD KNOW ABOUT THE NEW TRAVEL BAN

There is much uncertainty after the latest visa and travel restrictions announced by U.S. President Donald Trump on September 24, 2017. These restrictions apply to citizens of 8 different countries and could limit the hiring, promotion, business-related trips and other travel for individuals from these countries working for U.S. businesses.

There are waivers potentially available that may allow citizens of the 8 restricted countries to visit or work in the U.S., but it is not yet clear how the waivers will be administered.

Because of this uncertainty, it is recommended that American businesses should pay close attention to the nationality of their employees and keep all paperwork – such as I-9 forms for employee eligibility verification – up to date.

In the new policy, some of the 8 nations have more restrictions than others. For example, businesses should try to keep all Iranian employees from leaving the United States at all, until things change. If a business is not careful, it could have its employees stranded outside of the country.

These business immigration issues have become more complex, it has become more important for business owners and investors to consult immigration specialists instead of leaving these matters to human resources generalists.

Sept 2017 Travel ban

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DRAFT SEPTEMBER 24 TRAVEL BAN SUMMARY – FINAL ENGLISH DRAFT

On September 24, 2017, U.S. President Donald Trump issued a new set of visa and travel restrictions for certain foreigners coming into the United States. These new restrictions replace the “travel ban” President Trump issued on March 6, 2017, which expired the same day these new restrictions were announced.

The new restrictions target individuals from Iran, Syria, Yemen, North Korea, Venezuela, Chad, Libya, and Somalia. The restrictions begin immediately for some individuals, but apply for others starting on October 18, 2017.

Visas issued before October 18 will still be honored and will not be revoked. However, after October 18, no new U.S. visas will be issued to any Iranians and no Iranian can enter the United States, with the exception of green card holders or individuals who have an F or M student visa or a J exchange visa.

Even though there is a full Iranian ban in place, there are other potential exceptions to these new rules. Any affected potential immigrant, investor, or traveler should consult with a skilled immigration attorney to discuss his or her options.

Supreme court sides with Trump

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Court allows Trump administration to maintain its restrictions on refugees entering the US, but it will not be court’s final word on travel policy.

The supreme court is allowing the Trump administration to maintain its restrictive policy on refugees, agreeing to block a lower court ruling that would have eased the ban and allowed up to 24,000 refugees to enter the country before the end of October.

The order on Tuesday was not the court’s last word on the travel policy that Donald Trump first rolled out in January. The justices are scheduled to hear arguments on 10 October on the legality of the bans on travelers from six mostly Muslim countries and refugees anywhere in the world.

It is unclear, though, what will be left for the court to decide. The 90-day travel ban lapses in late September and the 120-day refugee ban will expire a month later.

The administration has yet to say whether it will seek to renew the bans, make them permanent or expand the travel ban to other countries.

Lower courts have ruled that the bans violate the constitution and federal immigration law. The high court has agreed to review those rulings. Its intervention so far has been to evaluate what parts of the policy can take effect in the meantime.

Appeals court upholds block on travel ban

Ninth circuit said president violated immigration law by discriminating against people based on nationality and he failed to show entry would hurt US interests.

Another federal appeals court has upheld a decision blocking Donald Trump’s revised travel ban.

The ruling on Monday from a unanimous three-judge panel of the ninth US circuit court of appeals deals the administration another legal defeat as the supreme court considers a separate case on the issue.

The judges say the president violated US immigration law by discriminating against people based on their nationality and that Trump failed to show their entry into the country would hurt American interests.

They didn’t rule on whether the travel ban violated the constitution’s ban on the government officially favoring or disfavoring any religion.

The fourth US circuit court of appeals in Virginia also ruled against the travel ban 25 May. The administration has appealed that ruling to the supreme court.

EXECUTIVE ORDER BANNING MUSLIMS

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Recap of the First Executive Order Banning Muslims and Refugees: January 27, 2017 to February 2, 2017

By: Marjan Kasra of The Law Offices of Marjan Kasra, LLC

Note: Please bear in mind that the situation with this Ban is extremely fluid, and that things may change at any time, therefore it is highly advisable for nationals of countries affected by this Ban to consult with an Immigration Attorney before making any travel plans, or decisions concerning their Immigrant or Non-Immigrant Visa matters

Ever since the issuance of President Trump’s Executive Order on January 27, 2017, now commonly referred to as the “Muslim Ban” the immigration rights of nationals of seven countries, namely Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen have been curtailed. The constitutionality of the Executive Order is questionable at best, and lack of appropriate guidance to customs and border protection (CBP) and Department of Homeland Security (DHS) has aggravated the assault on unassuming travelers from these 7-nations.

State of Affairs on January 27, 2017, and what the Ban Dictates:

Section 3 of the Executive Order effectively “suspends” the Immigrant and Nonimmigrant entry of said nationals for 90-days, through April 27, 2017, while a review of visa admissions is conducted. The US government is to use the 90-days to determine what additional information it deems necessary to resume admission process, and if a given country does not comply, the ban can become indefinite; due to the rocky relationship between the US and most of these nations, if left unopposed, this Ban can become indefinite.

Under the Ban, refugee admissions from said countries are halted for 120 days. Syrian refugees are hit the hardest with this respect, as refugee admissions from Syria are halted indefinitely; even this section appears to include a discriminatory provision implemented in that it carves out a special exception for “minority faith members” only, and does not take into account any other recognized grounds normally afforded refugees.

Biometric entry-exit tracking systems for all travelers to the US will be expedited.

The Visa Interview Waiver Program is being suspended for non-immigrant visas.

As a result of the above, combined with lack of adequate guidance to CBP, DHS, and airline executives, by Friday night thousands of unassuming legal Immigrant and Non-Immigrant US Visa holders, were stranded at airports abroad where they were denied boarding onto flights bound for the US. Many of the ones who actually made it through to a US port of entry were detained admission for several hours. Many were blatantly refused access to legal counsel.

The tragedy is that Legal Permanent Residents (LPRs) who make United States their homes were among these individuals. The Ban, taken on its face, and as interpreted on January 27, 28th, and for the better part of the 29th effectively placed a Ban on US Green Card Holders.

Furthermore, on January 27th, the State Department published an “Emergency Advisory” on the Executive Order asking all Immigrant and Non-Immigrant Visa Petitioners not to appear for their Visa appointments, and not to pay for any Visa fees.

For individuals who may not be familiar with an U.S. Immigration process, it is a very strict, rigorous, and lengthy process where prospective Immigrants undergo extensive background and security checks prior to being granted entry into this country. Furthermore, in family immigration matters (the most common type of Immigrant Petitions), an intending Immigrant must wait, apart from his / her petitioning family member, between 2 to 13 years before an appointment is scheduled at a US Embassy. On January 28th, Immigration practitioners throughout United States began receiving generic emails from US Department of State indicating that their client’s Visa appointment is “Cancelled due to unforeseen circumstances.” The letter goes on to say that “We will re-schedule your immigrant visa interview and inform you of the new appointment date as soon as we are able.”

January 28 & January 29: Litigation Galore

Historically, dual citizens of certain countries such as a dual citizen of Iran and United Kingdom have enjoyed a Visa Waiver Program, where said dual citizen could enter United States under the treaty which allows British Citizens a “Waiver” from having to obtain a US Visa. This changed during the Obama Administration when HR-158, or the “Visa Waiver Program Improvement Act of 2015” was implemented. It is believed that the current Executive Ban is rooted in HR-158, as the same 7-coutries were identified by said Bill, originally introduced by Candice Miller (R-Michigan) in January of 2015.

On Saturday, January 28, 2017, State Department officials released a statement to the Wall Street Journal indicating that the Ban on entry also applies to dual nationals from one of the affected countries. Therefore anyone who had a Passport from one of these countries (dual citizen or not) was treated as being “from” that country.

However, January 28, DHS began to demonstrate limited discretion to Green Card holders (LPRs) who had made it through to United States airports, and admitted some affected individuals on a case-by-case basis. Although DHS indicated on this date that Green Card holders would be allowed to board planes, practitioners reported individual cases where their clients were prevented from boarding their flights bound to United States.

Despite the limited improvement for some of the LPRs, the airports where still flooded with Immigrant and Non-Immigrant Visa holders who were being detained for hours. As you may recall, this lead to an outpouring of protestors, perturbed relatives, reporters and lawyers, and we all began to see our democracy at work. Just hours after President Trump had signed the Executive Order, ACLU spearheaded a coalition and a class action habeas petition was filed on behalf of two Iraqi nationals who held valid Visas, but were blocked entry at JFK in accordance to the EO.

On January 28, 2017 the US District Court for the Eastern District of New York issued an emergency stay of removal, and because this was a class action habeas, it effectively prevented DHS from removing all Visa holders, or refugees with approved applications. This was followed by similar petitions against President Trump and various immigration agencies, filed in Virginia, Boston, Washington State, and Los Angeles.

Common theme of assertions under the law suits filed on the 28th and the 29th were violations of procedural and substantive due process rights under the Fifth Amendment, and assertions that the EO unjustifiably discriminates against Petitioner’s country of origin. Furthermore, although the EO does not literally declare a “Ban on Muslims” effectively it does, thereby making a plausible case under the equal protection component of the Due Process Clause of the Fifth Amendment, which is also a common underlying theme of said law suits. Interestingly, the Virginia Lawsuit additionally claims that the EO violates the Establishment Clause of the First Amendment to the United States Constitution by giving preference to non-Muslims.

While these law suits were percolating, and continuing onto the better part of January 29th, four other developments occurred on that day:

US government halted travel for refugees from the 7-nations;
The Canadian Prime Minister reported that he had received assurances from the US government that Canadian dual citizens traveling on Canadian passports would not be affected by the Ban, regardless of their nationality;
DHS Press Secretary Kelly issued a Press Release stating that while the EO applies to LPRs, they do qualify for an exception to the ban, and declared that “I hereby deem the entry of lawful permanent residents to be in the national interest.”
DHS issued a summary of the EO which allows US LPRs traveling on valid I-551 to be allowed to board US bound aircrafts, and to be “assessed for exceptions at arrival ports of entry as appropriate.” Admission of these individuals is subject to national security check, and if said check is satisfactory to DHS, admission of an LPR traveling on valid I-551 is also in the national interest. However, as this DHS summary was just issued a few days ago, it remains to be seen as to how this directive will play out at ports of entry.

By January 30th US Citizens and US LPRs begin filing suits against the government.

On Monday night, United States Citizenship and Immigration Services (USCIS) suspended all pending Immigration benefits applications on behalf of nationals of the 7-nations within the United States, including petitions for asylum, adjustment of status, naturalization applications and even swearing-in ceremonies for already approved US citizenship applicants, only from these 7-nations, and as a direct result of President Trump’s Executive Order.

On the same day, the American Immigration Council, the Northwest Immigrant Rights Project, and the National Immigration Project of the National Lawyers Guild filed a type of lawsuit different from the ones filed on the previous days; this one has US Citizens (in addition to US LPRs & nationals of affected countries) as the Petitioners. This nationwide class action lawsuit, very unique in its nature, challenges the suspension of immigrant visa processing, which affects masses of individuals already living in this country. Plaintiffs in this matter claim that the EO directly violates their sacred and constitutionally protected rights to family, equal protection, and marriage.

January 31st: a special provision for Special Immigrant Visa holders

CBP issued a FAQs update, whereby it deemed the “entry of Iraqi nationals with valid Special Immigrant Visa (SIV) to the United States to be in the national interest and such individuals can apply for admission to the United States.” This is following the detention of an Iraqi SIV visa holder at JFK, and the ensuing lawsuit in NY which resulted in his release on the 29th.

February 2nd: Boston, Logan Airport is the new “Statue of Liberty” for the citizens of the 7-Nations, through 2/5/2017 only!

Remember the Boston Lawsuit as mentioned earlier? Well, on 2/2/2017 a MA District Court Judge issued a Temporary Restraining Order (TRO) against the EO, which provides a rare window of opportunity for all passengers with valid travel documents to board Lufthansa airline, from 2/2/2017 to 2/5/2017, so long as said flight has Boston as its US port of entry; apparently Lufthansa is the only airline which has posted an advisory stating that the EO banning travel from the 7-nations is suspended on flights to Boston for the duration of the TRO.

What’s next?

United States is a nation of immigrants, built by immigrants, for immigrants. No matter your political affiliation, the poorly drafted and horribly executed EO jeopardizes our Constitution and the very core values of what it is to be an “American.” The right to be with one’s family, the right to practice your religion, and even your right to pledge allegiance to this nation, the very freedoms which are at the heart of our democracy are called into question under the EO.

There is no doubt that we will be seeing our democracy at play, with more law suits aimed at protecting our core values as a nation of immigrants…All Immigrants, not just some.