The Department of State has confirmed to the American Immigration Lawyers Association (“AILA”) that there is no immediate plan to add any other countries to the current list of seven under President Donald Trump’s “Protecting  the Nation from Foreign Terrorist Entry into the United States” Executive Order signed on January 27, 2017.

In the chaos surrounding Trump’s executive order temporarily barring the entry of and cancelling the issued visas for nationals from seven countries identified as supporting terror (Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen), fears surfaced about the possibility of other countries being added to the list. The DOS’s confirmation follows in the wake of the White House Counsel’s guidance that U.S. Permanent Residents (“Green Card Holders”) were not part of the ban, and statements that dual nationals holding passports from a third country as well as from one of the affected countries would be allowed to enter the U.S. using their other passport. While subject to change, of course, this official confirmation should reassure the concerned travelers monitoring the situation.

Jackson Lewis immigration attorneys will continue to monitor developments closely and will provide updates to our readers as quickly as possible.

 

 

While daily governmental guidance for affected individuals, in the United States and abroad, has followed the signing of Executive Order “Protecting the Nation from Foreign Terrorist Entry into the United States” on January 27, 2017, reports of inconsistent treatment of individuals abound. The following illustrates some of the confusion regarding individuals “from” Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen.

Please see our Travel Update.

 

 

Perhaps anticipating an Executive Order from the White House on business immigration reforms, Representative Zoe Lofgren (D-Cal.), who represents Silicon Valley, has introduced a bill that calls for many reforms.

The High-Skilled Integrity and Fairness Act of 2017, similar to a bill introduced by Representative Darrell Issa (R-Cal.), raises wage levels related to certain H-1B visas. For H-1B-dependent employers, it eliminates the Master’s Degree exemption and raises the minimum wage for exemption from $60,000 to $130,000 – essentially making it more difficult for H-1B-dependent employers to hire H-1B workers who are not highly skilled and highly paid.

The Act also raises prevailing wages by scaling back the levels of wages from four to three. It allocates limited H-1B visas on the basis of wage – putting the highest paid workers at the top of list, but also sets aside 20 percent for small employers (those with fewer than 50 employees).

A cost-reduction provision clarifies that a change in worksite would not require an amended H petition as long as a new Labor Condition Application (LCA) is secured.

Representative Lofgren’s bill also adds protections for H-1B workers: requiring employers to provide H-1B visa holders with copies of their petitions (absent confidential business information) and protecting employees from contractual liquidated damages provisions for early resignations.

For foreign nationals seeking permanent residence status, the bill provides portability and general employment and travel authorization (AP/EAD) to those who have approved I-140 immigrant visa petitions that have been approved for at least 180 days – even if they are not “current.” The bill also would change the per country percentage cap for employment-based preference visas over a period of years – making waits for Green Cards shorter for those from countries that are currently over-subscribed.

Senator Sherrod Brown (D-Ohio) plans to introduce a bill to improve the H-1B and L-1 programs that includes protections for U.S. workers, as well as visa holders. Senators Charles Grassley (R-Iowa) and Dick Durbin (D-Ill.) have introduced a bi-partisan H-1B Reform Bill.

We will provide update as these bills make their way through the legislative process.

 

President Donald Trump’s Executive Order, “Protecting the Nation from Foreign Terrorist Entry into the United States,” signed on January 27, 2017, is having an immediate effect on travel to the U.S. for individuals from seven designated countries: Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen.

Please see our Travel Advisory.

 

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.

 

 

 

 

Posted at 10:34 am

Border security and immigration law enforcement are the subject of two new Executive Orders from President Donald Trump released on January 25, 2017.

“Border Security and Immigration Enforcement Improvements” directs the Department of Homeland Security to start the process of constructing the border wall between the U.S. and Mexico immediately. The Order directs:

  • The end of the “catch and release” policy.
  • The creation of more detention space at the border to facilitate the return of detainees to their home countries.
  • The hiring of 5,000 more Border Patrol agents.
  • The promotion of agreements with state and local law enforcement to enforce immigration laws.
  • The designation of criminal prosecutions with a nexus to the southern border as a high priority.

Initial funding for the wall may come from the existing Secure Fence Act, but Congress must make further appropriations to start construction. President Trump has said Mexico will reimburse the United States for the construction at a later date, which Mexican President Enrique Pena Nieto has disputed. The Border Security and Immigration Enforcement Improvements order also directs the DHS to detail how much U.S. foreign aid has gone to Mexico over the past five years.

The “Enhancing Public Safety in the Interior of the United States” focuses on enforcement. It:

  • Directs withholding federal funds from “sanctuary cities.”
  • Adds 10,000 immigration officers to perform law enforcement functions.
  • Makes public on a quarterly basis a comprehensive list of criminal actions committed by aliens.
  • Makes the acceptance of foreign nationals who are subject to removal from the United States a condition precedent to diplomatic negotiations.
  • Establishes an Office for Victims of Crimes Committed by Removable Aliens to provide support for family members.
  • Reinstates the Secure Communities Program that focuses on deportation of those who pose threats to public safety. This replaces the Obama Administration’s Priority Enforcement Program that focused on deporting certain criminal offenders, criminal gang members, and those who pose a danger to national security.

More orders are expected, including to reduce the refugee program that had been expanded by the Obama Administration and to restrict visas for certain countries (i.e., Syria, Yemen, Sudan, Somalia, and Libya).

 

 

Posted at 11:46 am

On January 24, 2017, President Donald Trump sent this Twitter message: “Big day planned on NATIONAL SECURITY tomorrow. Among other things, we will build the wall!” So begin what are expected to be several days of focus on Executive Orders affecting the nation’s immigration system and processes.

Trump is scheduled to make an appearance at the Department of Homeland Security (DHS) on January 25 and is expected to sign executive orders related to border security and immigration. Early indications are that these will address funding for construction of additional fencing on the U.S.-Mexico border. Construction of a border wall was a centerpiece of his campaign.

The President also is expected to sign orders restricting federal funding to “sanctuary cities” that refuse to cooperate with Immigration and Customs Enforcement in identifying illegal immigrants. Additional executive action is expected regarding limitations on refugee resettlement, a temporary ban on visa issuance and admission of individuals from certain countries (e.g., Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen) pending additional vetting processes being put in place. The President even may direct completion of a biometric entry-exit system and announce additional screening efforts for all individuals seeking immigration benefits.

We will continue to monitor developments and provide updates. Please contact a Jackson Lewis attorney with any questions.

 

ICE, primarily known for its immigration enforcement efforts and raids, does much more than that.

The Homeland Security Investigations Unit (HSI) of ICE has announced the repatriation of more than 400 Peruvian antiquities at a ceremony at the Peruvian Embassy in Washington, D.C. Some of the artifacts dated back to the 8th century A.D. and included ceramics, textiles, and jewelry from the Moche, Narzca, and Chancay cultures that existed in what is now modern Peru.  Statistically, trafficking in cultural property is one of the world’s most “profitable crimes” – with yearly thefts estimated in the $2 billion to $6 billion range.

ICE has a long history of recovering artworks:

  • In 2014, ICE found and recovered a painting by Johann Conrad Seekatz that had been removed from the National Polish Museum in Warsaw by Nazis between 1939 and 1945.
  • In late-2016, in conjunction with the Italian Carabinieri and with the help of the U.S. Customs and Border Protection, ICE facilitated the return of a 19th-century Carelli painting that was stolen from a residence in Naples, Italy, and resurfaced at a Pennsylvania auction house.
  • Also in 2016, through “Operation Mummy’s Curse” and “Operation Mummy’s Hand,” ICE repatriated artifacts to Egypt that included a nesting sarcophagus discovered in a garage in Brooklyn, New York, and an 8th-century B.C. mummy hand “hidden” as prop from a science fiction movie.

Overall, since 2007, ICE has returned more than 7,800 artifacts, from paintings to dinosaur fossils, to more than 30 countries. To facilitate its mission to protect cultural patrimony, ICE has created enduring partnerships with law enforcement agencies and cultural institutions in the United States and abroad.

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.