UPDATE:  On December 4, 2017, the U.S. Supreme Court allowed the most recent travel restrictions issued under President Trump’s September 2017 Proclamation to take effect while the cases in lower courts continue to be litigated.    This means that the travel restrictions will now be in full effect for individuals from Iran, Libya, Syria, Yemen, Somalia and Chad (the lower courts had limited the scope of the travel restrictions to individuals lacking family or other ties to the U.S.).  The travel restrictions continue to cover North Korea and certain government officials from Venezuela, as the lower courts did not cover those countries.   Appellate courts are scheduled to hear arguments on the cases, but the U.S. Supreme Court has indicated that the travel restrictions will remain in place, regardless of the decisions made, at least until the U.S. Supreme Court considers whether or not to take the cases based on the merits.  As additional information becomes available, we will provide regular updates.

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UPDATE:  On November 13, 2017, the U.S. Court of Appeals for the Ninth Circuit issued an Order, granting the government’s motion for appeal in part and denying the same motion in part.    The Ninth Circuit’s Order keeps the new travel restrictions blocked as to foreign nationals from Iran, Libya, Syria, Yemen, Somalia and Chad who have a “close familial relationship” with a person in the U.S. (including grandparents, grandchildren, brothers and sisters-in-law, aunts/uncles, nieces/nephews and cousins).   For entities, the bona fide relationship with the foreign national from one of the above-listed countries must be “formal, documented and formed in the ordinary course, rather than for the purpose of evading [the new travel restrictions].”  As additional information becomes available, we will provide regular updates.

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UPDATE:  On October 20, 2017, U.S. District Judge Watson changed the Temporary Restraining Order to a more permanent Preliminary Injunction.  On October 24, 2017, the government filed a notice of appeal to the Ninth Circuit Court of Appeals.  As additional information becomes available, we will provide regular updates.

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UPDATE:  On October 18, 2017, another federal judge blocked implementation of the new travel restrictions.  Specifically, U.S. District Judge Theodore D. Chuang upheld the State of Maryland’s challenge to the most recent travel restrictions and issued a preliminary injunction but limited the scope of the injunction to individuals with “bona fide” ties to the U.S.  As additional information becomes available, we will provide regular updates.

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UPDATE:  On October 17, 2017, U.S. District Judge Derrick Watson upheld the State of Hawaii’s challenge to the most recent travel restrictions indicating that  such travel ban “plainly discriminates based on nationality.”   The State of Hawaii did not challenge the travel restrictions related to North Korea and Venezuela. As such, the Temporary Restraining Order issued by Watson prohibits the administration from enforcing the most recent travel restrictions for individuals from Chad, Iran, Libya, Syria, Yemen and Somalia.   The administration has indicated that it will appeal this order.

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UPDATE:  On September 24, 2017, President Trump issued a Proclamation providing new travel restrictions, namely for nationals from Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen and Somalia.  Specifically, the entry of nationals from Chad, Libya and Yemen will be suspended for immigrants and B-1/B-2 (business/tourist visitors) nonimmigrants.  The entry of nationals from Iran will be suspended for immigrants and all nonimmigrants, with the exception of F and M students and J-1 exchange visitors who will be subject to enhanced screening and vetting.   The entry of nationals from North Korea and Syria will be suspended for all immigrants and all nonimmigrants.  The entry of nationals from Venezuela who are certain government officials and their immediate family members will be suspended; all other visaholders will be subject to additional measures.   The entry of nationals from Somalia will be suspended for all immigrants; all nonimmigrants will be subject to additional screening.

The new travel restrictions do not apply to permanent residents of the U.S.; foreign nationals admitted to or paroled into the U.S. on or after the effective date; foreign nationals who hold certain other visa documents on or after the effective date; certain foreign nationals traveling on diplomatic or similar visas; foreign nationals granted asylum, admitted as refugees or issued protection under the Convention Against Torture; and dual nationals who travel to the U.S. on a passport issued by a non-designated country.

Case-by-case waivers may also be available if an individual has previously been admitted to the U.S. for work or study (such as H-1B/L-1A/L-1B and/or F-1 visa) and is outside the U.S. on the effective date; has significant ties to the U.S. (work or family); employee of the U.S. government; employee of certain international organizations; Canadian permanent resident who applied for a visa at a location in Canada; U.S. government exchange visitor; or foreign national traveling to the U.S. at the request of the U.S. government.

The revised  travel ban issued under President Trump’s earlier Executive Order expired on September 24, 2017.  The new travel restrictions include a phased-in approach with certain restrictions effective immediately, but generally, the restrictions go into effect on October 18, 2017 and are valid indefinitely.  The administration indicates that the determination of countries selected is based on factors including identity management practices and information sharing on national security and public safety threats and that the list may be revised periodically to remove and/or add countries.  The Department of State and Department of Homeland Security have been directed to coordinate their efforts in developing and implementing procedures to effectuate this Proclamation.   The administration issued FAQs to the Proclamation, and the Department of State also posted additional details and chart.  On a related note, the U.S. Supreme Court has indicated that it will not hear oral arguments on the earlier travel ban as scheduled on October 10, 2017.  As additional information becomes available, we will provide regular updates.

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UPDATE:  On September 12, 2017, the U.S. Supreme Court upheld its earlier decision to keep individuals who are refugees with ties to a resettlement agency subject to the travel ban.  Earlier this week, the Ninth Circuit Court of Appeals ruled that refugees who have a formal agreement with a resettlement agency would be exempt from the travel ban.   The U.S. Supreme Court did not provide further explanation.  The U.S. Supreme Court is scheduled to hear the overall challenge to the travel ban in October.  Again, as additional information becomes available, we will provide regular updates.

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UPDATE:  On July 19, 2017, the U.S. Supreme Court upheld the U.S. District’s decision to include grandparents, grandchildren, brothers and sisters-in-law, aunts and uncles, nieces and nephews, and cousins of persons in the U.S. as “bona fide” relationships.  This means that individuals with such family ties to persons in the U.S. would not be covered by the travel bans.  However, the U.S. Supreme Court ruled that individuals who are refugees with ties to a resettlement agency would still be subject to the travel ban.  The U.S. Supreme Court is scheduled to hear the overall challenge to the travel ban later this year.  Again, as additional information becomes available, we will provide regular updates.

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UPDATE:   On July 13, 2017, the U.S. District Court for the District of Hawaii modified the previous injunction of the travel ban it had issued, which the U.S. Supreme Court recently permitted in part to continue.  As a reminder, the U.S. Supreme Court has indicated that the travel ban may be enforced against refugees and those individuals from the named countries who do not have bona fide relationships or ties to the U.S. The District Court concluded that the the following relationships constitute bona fide relationships:  grandparents, grandchildren, brothers and sisters-in-law, aunts and uncles, nieces and nephews, and cousins of persons in the U.S.  The District Court also indicated that individuals who are refugees with a formal assurance from a resettlement agency in the U.S. or part of the Lautenberg Program are not subject to the travel ban.  Again, as additional information becomes available, we will provide regular updates.

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UPDATE:  On June 26, 2017, the U.S. Supreme Court allowed parts of the travel ban to take effect and said that it would hear arguments regarding the Executive Order in October.  The Supreme Court indicated that the travel ban for individuals from the named countries (Iran, Libya, Somalia, Sudan, Syria and Yemen), as well as refugees, who do not have “bona fide” relationships or ties to the U.S. may go into effect. Examples of “bona fide” relationships or ties include individuals who are employed by or accepted a position with a U.S. company and foreign national students who are attending or have been accepted to a U.S. university.  The travel ban is expected to go into effect within 72 hours.  There are no formal announced procedures yet on how the government agencies (U.S. Department of State; U.S. Department of Justice; and U.S. Department of Homeland Security) will implement the travel ban.  Again, as additional information becomes available, we will provide regular updates.

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UPDATE:  President Trump’s administration moved to request that the travel ban take effect when the injunctions are lifted. As background, the travel ban was slated to take effect on March 16, 2017, and remain in effect for 90 days (through June 13, 2017).   The challenges to the travel ban still remain to be considered by the Supreme Court, and if the cases from the Fourth and Ninth Circuits Court of Appeals are considered moot, the injunctions against the travel ban would stand.

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UPDATE:  On June 12, 2017, the Ninth Circuit Court of Appeals also upheld the injunction against the travel ban issued under the revised Executive Order.   Such ruling will most likely be appealed to the U.S. Supreme Court, along with the pending decision from the Fourth Circuit Court of Appeals.

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UPDATE:  On June 1, 2017, President Trump’s administration filed emergency applications with the U.S. Supreme Court, requesting that the halt of the travel ban issued under the revised Executive Order be lifted.  As additional information becomes available, we will provide regular updates.

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UPDATE:  On May 25, 2017, the Fourth Circuit Court of Appeals upheld the injunction against the travel ban issued under the revised Executive Order. The Ninth Circuit Court of Appeals is still reviewing a lower court’s decision also blocking the revised travel ban.  In essence, the enforcement of this Executive Order remains halted.    As indicated earlier, the situation remains fluid, and as information becomes available, we will provide regular updates.

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UPDATE:  On May 8, 2017, the full “en banc” Fourth Circuit Court of Appeals heard arguments relating to the travel ban issued under the revised Executive Order and halted by a federal district court in Maryland.  No decision has yet been issued, and even if the Fourth Circuit Court  of Appeals finds in favor of the current administration’s revised Executive Order, the temporary restraining order issued by the U.S. District Court for the District of Hawaii remains in force.  In essence, the enforcement of this Executive Order remains halted.    As indicated earlier, the situation remains fluid, and as information becomes available, we will provide regular updates.

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UPDATE:  On March 15, 2017, the U.S. District Court for the District of Hawaii issued a temporary restraining order against the revised Executive Order, essentially halting the enforcement of this Executive Order.  U.S. District Judge Derrick Watson indicated that the state of Hawaii showed a strong likelihood of success and that the revised Executive Order failed to pass legal muster.    The White House has not yet commented on the ruling, and the Department of State and Department of Homeland Security have not yet provided guidance.  Related litigation remains pending in other states.  As indicated earlier, the situation remains fluid, and as information becomes available, we will provide regular updates.

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UPDATE:  On March 6, 2017, President Trump signed another Executive Order on immigration, specifically related to barring individuals from certain countries.   This order bans individuals from certain countries, namely Iran, Libya, Somalia, Sudan, Syria and Yemen, from entering the U.S. for a period of 90 days, effective March 16, 2017.   The notable differences between the first Executive Order signed on January 27, 2017, and this revised Executive Order are the following:

  • Iraq has been removed from the list of banned countries.
  • Permanent residents are “carved out” of the Executive Order – the ban does not cover permanent residents.
  • Certain nonimmigrants are “carved out” of the Executive Order.  The ban still covers individuals who would enter the U.S. as nonimmigrants; however, if an individual from one of the designated countries already holds a valid visa either on January 27, 2017 or on the effective date of the revised Executive Order (March 6, 2017), the individual is not barred from entry.
  • The order applies to individuals based on their current citizenship – i.e., the passport presented at time of entry.  In other words, if an individual was born in one of the above-listed banned countries but holds citizenship in a different non-designated country (i.e., individual born in Iran but holds Canadian citizenship), the individual would not be subject to this revised Executive Order.

As with the initial Executive Order, this revised order covers individuals from the above-listed countries, but subsequent Executive Orders could extend the ban period, as well as countries impacted by the ban.  As a practical matter, based on earlier reports, individuals that were born in one of the above-listed countries, even if they are citizens of another country, may be subject to the bar to entry. This revised order is aimed to curtail potential legal challenges, but it is highly anticipated that litigation will soon follow. As stated earlier, the situation remains fluid, and as information becomes available, we will provide regular updates.

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On a separate note, in his address to Congress, President Trump also made reference to a “merit-based system” as part of comprehensive immigration reform.  Such system would overhaul the current immigration system for permanent residence/green card status and would require an overhaul of current regulations.  Comprehensive immigration reform in various formats has been addressed by every President for several decades, with each administration failing to deliver on such promise.  Of course, as details become available, we will provide regular updates as well.

UPDATE:  On February 9, 2017, the Court of Appeals for the Ninth Circuit issued a unanimous decision against the federal government’s request to reinstate the travel ban under this Executive Order.   In essence, the Ninth Circuit upheld the decision of the lower court to halt the enforcement of this Executive Order.  As such, the Department of State and Department of Homeland Security will continue to issue visas and inspect travelers for admission to the U.S. under standard policies and procedures.  The Department of Justice has indicated that it is reviewing the decision.  As stated earlier, the situation remains fluid, and as information becomes available, we will provide regular updates.

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UPDATE:  On February 3, 2017, the U.S. District Court for the Western District of Washington issued a temporary restraining order against this Executive Order, essentially halting the enforcement of this Executive Order.  The Department of State has confirmed that provisionally revoked visas are once again valid for travel to the U.S., and Department of Homeland Security has announced that inspections of travelers would resume under standard policies and procedures. On February 4, 2017, the Department of Justice moved to appeal such decision.  As indicated earlier, the situation remains fluid, and as information becomes available, we will provide regular updates.

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As expected, on January 27, 2017, President Trump signed another Executive Order on immigration, specifically related to barring individuals from certain countries.   This order bans individuals from certain countries, namely Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen, from entering the U.S. for a period of 90 days.  The ban covers individuals who would enter the U.S. as nonimmigrants, as well as permanent residents.  Further, the order refers to individuals “from” a country on the “countries of concern” list determined by the Department of State.  The underlying regulation to which the order refers indicates it applies to “nationals” of that country, so an individual that was originally born in that country but is not currently a citizen of that country (i.e., an individual born in Iran, but a citizen of Canada) should be permitted entry into the U.S.  However, due to the language of the order as applying to individuals that are “from” such a country, Customs and Border Protection could interpret the order to bar individuals that were born in the above-listed countries and other “countries of concern” determined by the Department of State despite their current citizenship.  While the ban is limited to 90 days and covers individuals from the above-listed countries, subsequent Executive Orders could extend the ban period, as well as countries impacted by the ban.  Additionally, individuals that were born in one of the above-listed countries, even if they are citizens of another country, may be subject to the bar to entry.

As a result of such order, several individuals from the affected countries listed above who arrived in the U.S. on that day and over the weekend were detained by Department of Homeland Security.  Subsequently, on January 28, 2017, the U.S. District Court, Eastern District of New York, granted an emergency stay for individuals who arrived in the U.S. affected by such order.   While the order provides a stay of removal for those individuals (meaning that those individuals would not be physically removed from the U.S.), the order does not provide for the release of the individuals.  As such, Department of Homeland Security may transfer the individuals to detention facilities.  Other courts have issued similar orders.   The situation remains fluid, and as information becomes available, we will provide regular updates.

For any questions related to a specific case and potential strategies and alternatives, please feel free to reach out to us.

 

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