While at the Pentagon on January 27, 2017, President Donald Trump signed the “Protecting the Nation from Foreign Terrorist Entry into the United States” Executive Order, essentially ordering that all foreign nationals from countries identified in the E.O. – Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen – be stopped from entering the United States.

By January 28, foreign nationals from those identified countries with visas, as well as U.S. green card holders, were being detained at U.S. airports. Lawsuits challenging the E.O. were filed and a federal judge in Brooklyn, New York, issued a temporary restraining order on January 28 staying the ban by halting deportations. Other federal district courts followed suit and further hearings are scheduled for February.

Secretary of the Department of Homeland Security John Kelly stated on January 29 that returning U.S. green card holders were not subject to the ban.

The final E.O. differs from the initial draft E.O. leaked on January 26 and neither contained guidelines or provisions for implementing the bans.

Some substantive changes in the January 27 E.O.:

• Suspends the entry and issuance of all types of visas for at least 90 days (instead of 30 days) for those from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.
• Eliminates the creation of safe zones in Syria.
• Expands the grounds for exceptions to the 120-day ban on refugees to include persons actually in transit to the U.S. if denying admission would cause undue hardship.

The E.O. also grants state and local jurisdictions a role in determining the placement or settlement of eligible aliens in their jurisdictions in fulfillment of a campaign promise that a “Trump Administration would not admit any refugees without the support of the local community where they are being placed.”

Other countries have responded to the E.O.: Iran has blocked Americans from entry and Canadian Prime Minister Justin Trudeau has invited to Canada those refugees who are or may be turned away from the U.S. Reverberations are far flung, even affecting the world of sports – posing a possible threat to Los Angeles hosting the 2024 Olympics and the U.S. hosting the 2026 Soccer World Cup.

Those who might be affected by the bans should contact their Jackson Lewis attorney before undertaking any international travel.

Posted at 12:20 pm

“Protecting the Nation from Terrorist Attacks by Foreign Nationals” is expected to be the next Executive Order on immigration from the Trump Administration. This Order is intended to “protect the American people from terrorist attacks” and “ensure that those admitted into our country do not bear hostile attitudes toward our country and its founding principles.”

The Order likely will:

• Block Syrian refugees from entering the United States for an indefinite period until the President lifts the ban while creating safe zones in Syria to house those awaiting resettlement.
• Bar other refugees for at least 120 days while the U.S. Refugee Admissions Program for 2017 is reviewed and new vetting procedures are in place.
• Prioritize claims of religious minorities suffering from persecution (essentially prioritizing claims by non-Muslims).
• Reduce the overall number of refugees admitted in 2017 to 50,000 (below that proposed by the Obama Administration).
• Suspend entries and the issuance of visas for at least 30 days from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen while the government reviews its screening processes.
• Suspend the Visa Interview Waiver Program that allows returning nonimmigrants to extend their visas without appearing for in-person interviews at Consulates abroad.
• Expedite the completion of a biometric entry-exit tracking system to enable better tracking of foreign nationals in the United States and prevent overstays.
• Collect and make public information on the number of foreign-born individuals who have been charged with terrorism-related offenses, who have been “radicalized” after entry and engaged in terrorism-related acts, and who have committed gender-based violence against women or “honor killings.”

During the contemplated suspension periods, the Order would direct the Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, to determine what information is needed from applicants’ countries of origin to ascertain whether those foreign nationals would pose a threat to the United States. Further, the Order would direct that foreign nationals from countries that refuse to comply would be prohibited from entry until their country of origin does comply.

We will update with any changes once the final version of the Order is released.

The Department of Homeland Security (DHS) has released for public comment its amendments to the regulations governing the EB-5 Immigrant Investor classification: The EB-5 Immigrant Investor Program Modernization Rule.

The EB-5 program provides green cards to foreigners who invest in projects that create at least 10 jobs. The standard required investment amount has been $1 million. However, a $500,000 investment in a designated “Targeted Employment Area” (TEA) has sufficed. A TEA is a state-identified area of high unemployment, generally a rural area that has been designated for economic development, and is located in an approved Regional Center covering the geographical area that includes the given TEA. The program has been very popular and it is estimated that 90% of the EB-5 visas have been issued pursuant to projects in TEAs.

Of late, the program has been highly scrutinized and received accompanying public attention. There have been complaints about gerrymandering the boundaries of the regional centers to patch together areas of high unemployment. In 2016, the Securities and Exchange Commission filed a criminal complaint against Regional Centers in Vermont, including two ski resorts that appeared to be Ponzi schemes. The resorts were seized and put into receivership, leaving some innocent investors vulnerable to deportation. There have been lobbying efforts to change the rules so that defrauded investors could obtain green cards.

The new rule would:

• Allow foreign nationals to retain priority dates should their initial investment fail or stall while they are waiting for their date to become current;
• Increase investment amounts from $1 million to $1.8 million and from $500,000 to $1.35 million to reflect current dollar values; and
• Centralize with DHS the power to designate regional centers, thus removing that responsibility from the states.

Although this proposed rule was released for public comment prior to January 20, 2017, any further action on this rule will have to await review by the new Trump Administration.

In six months, on July 17, 2017, the Department of Homeland Security’s final rule to improve the nation’s economy by making it possible for certain promising start-up founders/entrepreneurs to begin growing their companies in the United States will become effective.

The new rule amends the regulations on discretionary parole by adding provisions that will allow the use of parole on a case-by-case basis for entrepreneurs who can “demonstrate through evidence of substantial and demonstrated potential for rapid business growth and job creation that they would provide a significant public benefit to the United States.” The additional regulation will be at 8 CFR 212.19.

The “entrepreneur” parole will be for an initial 30-month period with the possibility of a second 30-month extension. The entrepreneur will have work authorization incident to his or her parole status. Upon a successful application, dependents also will be granted parole, but spouses would have to apply for work authorization after entry in the United States.

The eligibility criteria for the initial parole include:

• An applicant must possess a substantial ownership interest (at least 10%) in the start-up entity;
• An applicant must have an active and central role in the operations and future growth of the entity and cannot be a “mere investor”;
• An applicant who is lawfully admitted to the U.S. in another status may apply for parole, but will need to leave the U.S. and apply for admission to activate that parole;
• The entity must have been created “recently” – no more than 5 years prior to the application;
• The entity must prove it has significant investment from qualified and established U.S. investors (at least $250,000) or the receipt of significant awards or grants from federal, state, or local government entities (at least $100,000). If the start-up partially meets only one of these requirements, the applicant may provide additional compelling evidence of its potential.

A new Form I-941 has been created for the Application for Entrepreneur Parole. President Barack Obama chose to pursue this new rule when attempts at legislation proved impossible. Although Congress is planning to undo a number of Obama Administration rules and President Donald Trump has been critical of the H-1B program. Trump also has said that he would like to “select immigrants based on their likelihood of success in U.S. society and ability to be financially self-sufficient.”

The new entrepreneur rule may be just that sort of selection process.

Representative Darrell Issa (R-Calif.) has introduced two pieces of legislation to watch.

The Midnight Rules Relief Act, H.R. 21, would allow Congress to overturn any regulations en masse that were finalized or will be finalized during the lame duck session. This could include the long-awaited rule regarding Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting Highly-Skilled H-1B Nonimmigrant Workers, set to become effective on January 17. The rule would establish job portability and flexibility for certain nonimmigrants, including those with pending green card processes. H.R. 21 was passed by the House.

The Protect and Grow American Jobs Act, H.R. 170, would change eligibility requirements for exemption from the Labor Condition Applications (LCA) requirements for H-1B dependent employers. Employers with more than 50 full-time workers are H-1B dependent if at least 15 percent of their workforce is in H-1B status. H-1B dependence calculations for smaller employers are set forth at 20 CFR 655.736. When H-1B dependent employers file H-1B petitions, they must make additional LCA attestations regarding displacement of U.S. workers and good faith efforts to recruit and hire U.S. workers. But there are exemptions from those attestations if the employee will make at least $60,000 annually or if the employee possesses a Master’s degree in the relevant field. H.R. 170 would eliminate the Master’s degree exemption and raise the minimum annual salary for exemption to $100,000. Representative Issa’s website states that the bill “will help crack down on abuse and ensure these spots remain available for the best and brightest talent from around the world.”

We will continue to monitor the path of these bills.