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https://www2.nycbar.org/htmlemail/44thST/Notes_030518.htm

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

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.

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.

Read this: EB-5 UAE

The common issue of filing an EB-5 Petition for Iranian Citizens, please refer to our article below, by Attorney Marjan Kasra and Mr. Babak Hojjat, published in the EB-5 Investors Magazine:

Successful Iranian EB-5 Petition

United States Citizenship and Immigration Services (USCIS) implemented a special visa category called “U Visa” in conjunction with Congress’s passing of Victims of Trafficking and Violence Prevention Act (VTVPA) back in 2000.

This special visa category was created in order to protect undocumented foreigners who have suffered substantial abuse (mental or physical) and who are willing to assist the police, prosecutors and other government officials (if any) investigating the crime.

Congress’s passing of VTVPA is meant to promote investigation and prosecution of crimes such as domestic violence, sexual assault, or human trafficking, while protecting people who help report those crimes.

Since its creation, the U Visa category has protected many undocumented individuals who have helped report such crimes from being deported.

More importantly, a successful U-Visa applicant who otherwise meets all other US requirements qualifies to apply for Adjustment of Status in a few years to obtain their permanent green card.

If you have been a victim of a serious crime such as kidnapping, domestic violence, blackmail, extortion, assault, or any other crime, and have also cooperated with law enforcement pertaining to said crime, you may be eligible to file a U-Visa petition with USCIS.

This particular petition provides you, as the victim, lawful presence within the United States.

Please be aware that this in itself does not grant you permanent residency, and you would need to take additional steps to secure your U.S. Green Card.

To qualify for this petition, the victim must have cooperated with law enforcement agencies (i.e. Police, FBI, or Prosecutor) with the investigation and/or the prosecution of the crime.

In helping the law enforcement with the investigation and prosecution, the victim must have provided sufficient information or evidence in order for either the police department or other law enforcement agencies to attempt at capturing and prosecuting the offender.

Along with providing the law enforcement agency with information on the offender, the victim must have been subject to physical or mental harm.

The victim must be able to provide evidence of the harm done to them. There are several forms of evidence depending on the type of harm that was inflicted upon the victim.

Alongside with the evidence of the harm done to the victim, an official from an applicable government law enforcement agency must sign a document or certificate attesting to the cooperation from the victim and the continual cooperation (if necessary).

The Certification is done on USCIS Form 918 (“Supplement B”) where the law enforcement individual identifies the nature of the criminal act as well as affirming or denying whether the victim assisted law enforcement in their investigation of said crime.

A favorable certification is crucial to the U-Visa petition.

There are several agencies that are qualified to sign the certification. There have been instances where the victim of a crime has had trouble securing certification from one government agency.

In such cases, our law firm seeks out the assistance of different law enforcement agencies involved in the case in order to fulfill this requirement.

Upon obtaining all required documents, our firm moves forward with the victim in filing the appropriate petition to USCIS. Our firm works closely with the victim to ensure all proper information is provided and handled in an appropriate and timely manner.

A successful U-Visa Petition allows an undocumented individual to stay within the United States.

Not only does the victim obtain lawful presence for up to four (4) years, the victim may obtain an employment authorization (EAD) card. With the employment authorization card, the victim is able to legally work within the United States.

After the four (4) years, the victim may qualify for lawful permanent residency, and must take affirmative steps to obtain his/her Green Card.

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.

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.