E-1 / E-2 Visas affected

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Department of State continues to tighten regulations with respect to Iran, further hindering issuance of visas to Iranian nationals: E-1 / E-2 Visas affected

U.S. Department of State (DOS) published the following:
1. Diplomatic relations with Iran were severed on April 7, 1980.
2. With certain exceptions pertaining to personal communications, humanitarian assistance, information exchange, and personal travel arrangements, all trade with Iran wasbanned pursuant to an executive order of May 8, 1995. Consequently, the issuance of virtually all “E-1” visas to nationals of Iran is
prohibited.
3. G visa applicants must submit their applications to either U.S. Embassy Bern or
U.S. Embassy Vienna. Please contact the consular sections in Bern and Vienna for additional details on the application process.

Important to note is the fact that on October 3, 2018, the Trump administration revoked the Treaty of Amity which had existed between Iran and USA since June 16, 1957. Said “Treaty of Amity” was meant to promote economic relations between the two countries, and was first signed in Tehran, Iran on August 15, 1955, entered into force on June 16, 1957, and later registered by the United States to the United Nations on December 20, 1957.

Iran had challenged the reinstatement of sanctions by filing documents with the Hague on July of 2018, accursing United States of “economic aggression.” Many believe that the revocation of the Treaty is a direct response to said complaint launched by Iran.

Both E-1 and E-2 visas rely on said Treaty as the basis for issuance of the same. As anticipated, in 2018, DOS only issued one E-2 Visa out of hundreds for Iranian nationals applying for E-2 visa overseas. Many Iranian nationals who have been living and working in the United States who are now due for E-1 / E-2 visa renewals have not been issued their visas.

The fate of the existing E-1 / E-2 visa holders already in the United States was unclear. The August 6th publication as cited above clearly prohibits issuance of E-1 visas to Iranian nationals, further solidifying the ripple effects as the result of revocation of Treaty of Amity. We anticipate similar affirmative announcements for E-2 visa holders from Iran.

Existing E-1 and E-2 visa holders are highly encouraged to immediately seek legal advice regarding their options.

E-1 / E-2 Visas news

us-visa-category

Department of State continues to tighten regulations with respect to Iran, further

hindering issuance of visas to Iranian nationals: E-1 / E-2 Visas affected
On August 6, 2019, U.S. Department of State (DOS) published the following:

1. Diplomatic relations with Iran were severed on April 7, 1980.
2. With certain exceptions pertaining to personal communications, humanitarian assistance, information exchange, and personal travel arrangements, all trade with Iran wasbanned pursuant to an executive order of May 8, 1995. Consequently, the issuance of virtually all “E-1” visas to nationals of Iran is
prohibited.
3. G visa applicants must submit their applications to either U.S. Embassy Bern or
U.S. Embassy Vienna. Please contact the consular sections in Bern and Vienna for additional details on the application process.

Important to note is the fact that on October 3, 2018, the Trump administration revoked the Treaty of Amity which had existed between Iran and USA since June 16, 1957. Said “Treaty of Amity” was meant to promote economic relations between the two countries, and was first signed in Tehran, Iran on August 15, 1955, entered into force on June 16, 1957, and later registered by the United States to the United Nations on December 20, 1957.

Iran had challenged the reinstatement of sanctions by filing documents with the Hague on July of 2018, accursing United States of “economic aggression.” Many believe that the revocation of the Treaty is a direct response to said complaint launched by Iran.
Both E-1 and E-2 visas rely on said Treaty as the basis for issuance of the same.

As anticipated, in 2018, DOS only issued one E-2 Visa out of hundreds for Iranian nationals applying for E-2 visa overseas. Many Iranian nationals who have been living and working in the United States who are now due for E-1 / E-2 visa renewals have not been issued their visas.

The fate of the existing E-1 / E-2 visa holders already in the United States was unclear. The August 6th publication as cited above clearly prohibits issuance of E-1 visas to Iranian nationals, further solidifying the ripple effects as the result of revocation of Treaty of Amity. We anticipate similar affirmative announcements for E-2 visa holders from Iran.

Existing E-1 and E-2 visa holders are highly encouraged to immediately seek legal advice regarding their options.

EB-5 Changes Are Here

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EB-5 Changes Are Here: Final Rule Published on July 24, 2019

After two and a half years of anticipation, OMB’s (U.S. Office of Management and Budget) proposed rules for Modernization Regulation RIN-1615AC07, was sent for publication several days ago.

Everyone in the EB-5 industry pondered why it is taking so long for the rule to become public, but the wait is now over:

Department of Homeland Security (DHS) has made public the final rule changes for the EB-5 program. The changes will officially become published on July 24, 2019.

We have access to the unpublished version which contains all the new changes:
https://s3.amazonaws.com/public-inspection.federalregister.gov/2019-15000.pdf

Impact of the New Publication:
Here are the most important highlights which investors and Regional Centers should be aware of:

  • Changes go into effect as of November 21, 2019
  • Investment with the existing minimum amount is still possible if an investor is able to make a successful filing with a date prior to November 21, 2019
  • Minimum investment amounts will rise to $900,000 for Targeted Employment Area (TEA) and $1,800,000 for non-TEA areas.
  • TEA designation will no longer be made by the states. USCIS, not the states, will have the authority to designate an area as TEA
  • TEA designation is expected to become allot more restrictive, thus impacting multiple Regional Centers
  • USCIS is to make a new determination every 5-years, beginning October 2, 2024, whether the investment amount should increase further
  • Amendments or supplements made to offering documents which are necessary (in order to remain compliant with securities laws or with other new regulations) will not in themselves result in a denial or revocation of an EB-5 petition, provided that the petition meets all other requirements
  • If an investor has multiple approved I-526 petitions, that investor can retain the earlier priority date, so as to avoid additional processing time.

Serious investors are urged to act quickly. Some Regional Centers which may not have factored-in the potential changes may face issues with complying with the new regulations.

NOTE: The EB-5 program is set to expire on Sept 30, 2019. While Congress and stakeholders are diligently working on reauthorization, the deadline may be extended. If such an extension occurs, the rule published today may never take effect. Only Congress can enact all of the reforms necessary to modernize EB-5. The published changes do not address the much anticipated:

  • Fraud and national security measures which were highly anticipated
  • The rural and urban “distressed visa” allotment
  • The anticipated “Opportunity Zone” designations in urban areas

As of now, the date for the implementation of the new rules as outlined above is November 21, 2019 Please consult Lawmaks with any specific questions you may have.

PRESIDENT TRUMP’S TRAVEL BAN AND ITS EFFECTS ON U.S. IMMIGRATION

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By: Marjan Kasra, Esquire & Babak Hojjat, J.D.

Under the Trump administration, entry into United States has been severely restricted for nationals of certain countries. Under Travel Ban 1.0, there was extreme chaos experienced at all ports of entry into United States. Airlines refused to board nationals from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen on January 27, 2017, the implementation date of the first Travel Ban.

The constitutionality of the executive order was suspect from the get-go especially since the population of all these countries was predominantly comprised of Muslims. Travel Ban 1.0 caused extreme chaos at the airports, where even U.S. legal permanent residents (green card holders) were denied entry. This is due to the poorly written Travel Ban 1.0 and lack of warning or guidance from the administration and the Department of Homeland Security (DHS) to Customs and Border Protection (CBP).

As a result of Travel Ban 1.0, all existing immigrant and nonimmigrant visa appointments were cancelled and none of the already issued visas were being honored. Airlines stopped boarding individuals from said 7 nations for fear of being fined, and people who had already arrived at the U.S. ports of entry were being detained and refused entry.

This caused tremendous stress for not only the foreign nationals, but also for their U.S. counterparts. Following a week of public protests at the airports nationwide, a federal judge in Seattle blocked U.S. President’s executive order which by that time was being called the “Muslim Ban.”

The restraining order as issued by the Seattle Judge prompted the Department of State to restore visas and visa appointments of the affected nations. In addition, Homeland Security suspended all actions in terms of enforcing the ban.

Amid the chaos and confusion, the American Civil Liberties Union filed a class-action case on behalf of two nationals with valid visas who were blocked entry at JFK international airport.

A few days later, a federal judge in New York issued an emergency stay of removal, effectively stopping Department of Homeland Security from removing all visa holders and refugees with approved application on U.S. soil. Similar lawsuits followed against Trump in Virginia, Washington, Boston and Los Angeles.

The underlying theme of the grievance against the administration was rooted in violations of due process under Fifth Amendment as well as violations of the Establishment Clause of the First Amendment (as asserted by the Virginia Lawsuit).

After months of litigation, Travel Ban 2.0, a more “watered-down” version of the first one was introduced on June 29, 2017. Emergency motions were filed in Hawaii before the ban even went into effect, claiming that the Trump Administration was yet again attempting to ban certain class of individuals (Muslims) from entering the country.

This time around, Travel Ban 2.0 asserted that foreign nationals must prove a form of relationship with a parent, spouse, fiancé, child, adult son or daughter, son-in-law, daughter-in-law or sibling in the US in order to enter the country. Other family members, including grandparents were initially excluded as they did not count as a “bona fide” relation to the foreign national, and later included (following lawsuits).

Unlike the original Ban, with this version, existing Green Card holders and those with the stated “bona fide” U.S. family members were exempt from the Ban.

On the eve of the Travel Ban 2.0 going into effect, Federal Judges in both Hawaii and Maryland put the Ban on hold to more fully consider its constitutionality.

After much litigation, in June of 2017, right before the Supreme Court took its summer recess, it gave the administration the win it needed…the Supreme Court’s ruling was unsigned by liberal justices (Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan), but effectively lifted the hold on the ban. Conservative Justices Neil Gorsuch, Clarence Thomas, and Samuel Alito argued that the Trump administration should be allowed to enforce the Travel Ban in all cases.

This allowed the Trump administration to bar citizens of Iran, Libya, Somalia, Sudan, Syria, and Yemen from entering the U.S. for 90-days, and to bar nearly all refugees from entering the U.S. for 120 days.

Then came Travel Ban 3.0…..On September 24, 2017, Presidential Proclamation 9645 (no longer entitled “Executive Order”) was issued which imposed restrictions on eight countries: Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen.

It also imposed added security measures on Iraqi citizens. Both 9th Circuit (Hawaii Plaintiffs) and 4th Circuit (Maryland Plaintiffs) issued injunctions against Travel Ban 3.0, again rendering the travel ban ineffective. However this time the Supreme Court, on December 4, 2017 granted the Trump Administration’s motions for emergency stay of preliminary injunctions.

Following said Supreme Court decision, President Trump’s most recent travel ban went into effect on December 8, 2017 for the predominantly Muslim countries while the appeals were still pending. The Supreme Court encouraged the appeals courts to quickly decide whether the most recent travel ban was lawful.

Effectively, the Presidential Proclamation appears to have resulted in the categorical denial of Immigrant Visas to unassuming families of U.S. Citizens (and LPR’s) who have waited between 1-13 years for a Visa to become available (wait time depends on which family or employment-base category is utilized).
Unlike Travel Ban 1.0, the visas issued to affected individuals prior to the Proclamation have not been revoked. However, there have been several reported incidents of invasion of privacy and prolonged questioning of the affected foreign nationals entering United States. There have been reports of similar abuse for even U.S. Citizens and Green Card holders who were born in the affected nations.

Unlike Travel Ban 1.0, under the existing Travel Ban, National Visa Center (NVC) continues to issue visa appointments. However, upon an interview at a given U.S. Consular Post, everyone (with a few visa category exceptions afforded some of the countries) is categorically denied a visa under with a generic statement reading “…a consular officer found you ineligible for a visa under Section 212(f) of the Immigration and Nationality Act, pursuant to Presidential Proclamation 9645.

Today’s decision cannot be appealed.”
Said denial notice then allows the U.S. Consular Post Officer to check mark one of the two indicated options: 1) A denial with no option to file a Waiver; or 2) A denial with an option to file a Waiver.

Although a Waiver process is supposed to be possible, it is unclear as to what standards of proof are being used to make this determination. Department of State issued a guidance on December 4, 2017, which is effectively a reiteration of the Presidential Proclamation without much added clarity. The DOS “guidance” indicates a Waiver from the Presidential Proclamation may be granted on a “case-by-case basis”, if a foreign national demonstrates to the consular officer’s or CBP official’s satisfaction that:

(a) Denying entry would cause the foreign national undue hardship;

(b) Entry would not pose a threat to the national security or public safety of the U.S.; and

(c) Entry would be in the national interest;

However, according to a bipartisan Senate letter (Jeff Flake & Chris Van Hollen) to the Secretary of the State (dated January 31, 2018), “…we have received reports of uniform denial of waivers for visas.” Furthermore, DOS has failed to provide the public with definitive guidance on waivers and to provide the qualifications and standard of proof for establishing waiver eligibility.
To make matters more complicated, on February 6, 2018 President Trump ordered establishment of a new government agency, “National Vetting Center,” housed with Department of Homeland Security, with a focus on further screening of immigrants, refugees, and other visitors.

It is unclear as to what standards will be used by the National Vetting Center, and whether these standards are uniform for all nationals, or whether the Administration will continue to target nationals of certain countries.

The Supreme Court hearings on Travel Ban 3.0 are to be held on April 25, 2018, and the general consensus in the legal community is that the Supreme Court will in all likelihood avoid making a merits based determination of the Travel Ban. It is now up to the U.S.

Supreme Court to decide whether the Judiciary will defer to the Executive Branch when it comes to matters of national security, and in that balancing act hangs the fate of millions of affected individuals from the predominantly Muslim nations.

Click here to read the ruling

Travel Ban (Waiver)

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Iranian nationals, along with nationals from 7 other countries (Chad, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen) are subject to the Presidential Proclamation 9645, dated September 24, 2017 with an applicable implementation date of December 8, 2017.

This was following the December 4 2017 stay by the Supreme Court pending further proceedings in the courts of appeals.

According to the Presidential Proclamation 9645 dated September 24, 2017, which was implemented as of December 8, 2017, a Waiver may be granted on a case-by-case basis as follows:

“(iv) Case-by-case waivers may not be granted categorically, but may be appropriate, subject to limitations, conditions, and requirements set forth under subsection (i) of this subsection and the guidance issued under subsection (ii) of this subsection, in individual circumstances such as the following:

The foreign national has previously been admitted to the United States for a continuous period of work, study, or other long-term activity, is outside the United States on the applicable effective date under section 7 of this proclamation, seeks to reenter the United States to resume that activity, and the denial of reentry would impair that activity;

The foreign national has previously established significant contacts with the United States but is outside the United States on the applicable effective date under section 7 of this proclamation for work, study, or other lawful activity;
The foreign national seeks to enter the United States for significant business or professional obligations and the denial of entry would impair those obligations.

The foreign national seeks to enter the United States to visit or reside with a close family member (e.g., a spouse, child, or parent) who is the United States Citizen, lawful permanent resident, or alien lawfully admitted on a valid nonimmigrant visa, and the denial of entry would cause the foreign national undue hardship;…” Federal Register / Vol. 82, No. 186 / Wednesday, September 27, 2017 / Presidential Documents 45169;

For purposes of determining if someone is eligible for the waiver based on a “close family member,” the guidance indicates that, in the context of the Proclamation, the term “close family member” only includes spouses, children under the age of 21, and parents of U.S. Citizens, of lawful permanent residents, and of alien lawfully admitted to the U.S. on a valid nonimmigrant visa. While the INA definition includes only children, spouses, and parents of a U.S. Citizen, in the context of the Presidential Proclamation it also includes these relationships with LPRs and aliens lawfully admitted on a valid nonimmigrant visa in addition to U.S. Citizens.

According to the DOS guidance dated December 4, 2017, “…a consular officer will make a determination whether an applicant otherwise eligible for a waiver under the Proclamation and therefore issued a visa.”

According to said DOS guidance, a Waiver may be granted on a case-by-case basis, if a foreign national demonstrates to the consular officer’s or CBP official’s satisfaction that:

Denying entry would cause the foreign national undue hardship;
Entry would not pose a threat to the national security or public safety of the U.S.; and
Entry would be in the national interest;

Hardship: You must make arguments as to why the U.S. Petitioner may not be able to go back to Iran on a long term basis and point out the hardships such as loss of job, or University enrollment, etc. In addition, any emotional or financial hardship may be discussed.

National Security: As the U.S. Embassy no longer honors Iranian issued Police Clearance Letters, we take added measures to clear Beneficiary’s name(s). Lastly, you must complete detailed Form DS-5535.

National Interest: In order to prove that the issuance of the visa is in the National Interest, we review with you your educational background, and your aspirations for after you enter the United States. We also point out long standing U.S. national policies which aim to keep families together as well as United States Congressional Acts which combat nationalism and racism.

The Presidential Proclamation stipulates that the Secretaries of State and Homeland Security shall “adopt guidance addressing the circumstances in which waivers may be appropriate for foreign nationals seeking entry as immigrants or nonimmigrants.” The December 4th alert by DOS refers back to the proclamation and is virtually a reiteration of the Proclamation itself.

To date, the administration has not offered a detailed guidance on the waiver program, and we are left with unanswered questions as to what the Administration considers “undue hardship,” what criteria determines whether a waiver is “in the national interest,” and how a consular or CBP officer will determine whether a foreign national poses a threat.

In a U.S. Senate Letter written by Senators Chris Van Hollen (D-MD) and Jeff Flake (R-AZ) on January 31, 2018, a complaint is made regarding the fact that the Secretaries of State and Homeland Security have failed to guidance to consular posts or CBP officers on how to go about the “case by case” determination.

For a copy of this letter, please click here.

Travel ban update

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The high court agreed to review whether the bid to impose a variety of travel restrictions for nationals of Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen and Somalia is the result of either an exhaustive, security-based review process by various government agencies, as the federal government contends, or an effort to restrict members of a particular religion, as several states allege.