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.

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

DIVERSITY VISA

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

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.