Category Archives: expedited removal

B-1 Visitor Visa: Traveling to the U.S. for Business

Posted on March 28, 2017 | Comments Off on B-1 Visitor Visa: Traveling to the U.S. for Business

The B-1 visa or combined B-1/B-2 visa is for nonimmigrants who seek to enter the U.S. temporarily for business reasons and tourism. To get the visa or gain entry to the U.S. on this visa, you need to show you will participate in only permitted activities.

WHICH ACTIVITIES ARE ALLOWED ON THE B-1 VISA? 

Examples of temporary business-related activities you may conduct are described below. This list is not exhaustive, but is specified in the Department of State’s Foreign Affairs Manual and other official guidance as appropriate reasons for a B-1 visa issuance.

Visitors Traveling to the U.S. to  Participate in Business Activities of a Commercial Nature

You may use the B-1 visitor visa to:

Consult with business associates and attend business meetings. Except – You may not work for or receive income from a U.S. based company. Working for a foreign company while you are in the U.S. on a visitor visa can also cause problems.

Engage in commercial transactions/sales, such as providing exhibitions, taking orders, negotiating, and signing contracts for products that are made outside the U.S. Except – The activities must not involve gainful employment or performance of work in the U.S. and must not result in compensation.

Seek business investment, including to survey potential sites for a business and/or to lease a premises in the U.S. Except – You may not remain in the U.S. to actively manage the business or perform work for the business.

Attend a scientific, educational, professional, or business convention, conference, meeting, trade show or event on specific dates. Except – You may not work for or receive income from a U.S. based company.

Litigate, including to participate in a lawsuit, take a claim to a court of law, or settle an estate. Except – You may not work or receive income from a U.S. based company, although you may receive monetary awards based on a court order.

Serve as an exposition or trade show (non-government) employee of a foreign exhibitor at an international fair. Except – You may not work for or receive income from a U.S. based company.

Install, service or repair commercial or industrial equipment or machinery sold and manufactured by a non-U.S. company to a U.S. buyer, when required by the purchase contract. Except – Installation cannot include construction work, except for training or supervision of U.S. workers to do construction, and you may not receive compensation from a U.S. source.

Complete short-term training. Except – The training program should not be designed primarily to provide employment. You may not receive payment or income from a U.S. based company, other than an expense allowance or expense reimbursement related to your temporary stay.

Do independent research. Except – You may not receive any salary or income from a U.S. based source or provide benefit to a U.S. institution.

Visitors Traveling to the U.S. to Pursue Employment Incidental to their Professional Activities

You may also use the B-1 visa in the following situations:

Ministers of Religion and Missionaries

Ministers of religion may receive B-1 visas to participate in an evangelical tour, so long as they do not accept appointment with any one church and will be supported by contributions at each evangelical meeting.  B-1 visas are also granted to ministers of religion temporarily exchanging pulpits with U.S. counterparts, provided they are reimbursed by the foreign church and will receive no pay from the host church in the U.S.

B-1 visas are issued to members of religious denominations, whether ordained or not, entering the U.S. solely to temporarily perform missionary work for a denomination, as long as they do not sell articles or solicit or accept donations and will receive no pay from U.S. sources other than an allowance or reimbursement for incidental expenses. “Missionary work” includes religious instruction, aid to the elderly or needy, and proselytizing, but not ordinary administrative work or ordinary labor for hire.

Participants in Voluntary Service Programs

You may use the B-1 to participate in a voluntary service program benefiting U.S. local communities. A “voluntary service program” is a project run by a recognized religious or nonprofit charitable organization to assist the poor or the needy or to further a religious or charitable cause. You must be a committed member of the organization.

Activities may include attending meetings, speaking at a conference, or assisting with an event. But you may not use the B-1 to circumvent the R-1 (nonimmigrant religious worker) visa process and live in the U.S. or work for a religious or non-profit charitable organization.

No pay must be received from a U.S. source, other than an allowance or reimbursement for incidental expenses.

Members of Board of Directors of U.S. Corporation

Foreign national directors of a U.S. corporation may travel to the U.S. on a B-1 visa to attend Board of Directors meetings or perform other duties related to board membership.

Professional Athletes

Professional athletes, such as golfers and auto racers, may use the B-1 visa to participate in a tournament or sporting event and receive prize money, but cannot receive salary or any other payment.

The B-1 visa is also issued to athletes or team members who seek to enter the U.S. as members of a foreign-based team to compete with another sports team, provided the foreign athlete and the foreign sports team have their principal place of business or activity in a foreign country; the income of the foreign-based team and the salary of its players are mainly earned in a foreign country; and the foreign-based team is a member of an international sports league or the sporting activities involved have an international dimension.

Amateur hockey players who seek to enter the U.S. for brief try-outs to join a professional team during the regular professional season or playoffs may also receive a B-1 visa. There must be an agreement with a National Hockey League (NHL)-parent team to provide only for incidental expenses such as round-trip fare, hotel room, meals, and transportation.  They cannot use the B-1 to stay and play on the U.S. team.

Investor Seeking Investment in United States (UPDATE, 12/28/2017)

You may be issued a B visa if you are seeking investment in the United States, including an investment that would qualify you for an E-2 nonimmigrant investor visa or EB-5 immigrant visa. You may use the B-1 visa to observe and monitor potential qualifying investments, as long as you otherwise qualify for the visa, e.g. do not plan to enter the U.S. to pursue permanent resident status. Like all B-1/B-2 visitors, you may not perform productive labor or actively participate in managing the business while you are in the U.S. in B status.

Equestrian Sports

You may travel to the U.S. on a B-1 visa to perform services for a foreign-based employer as a jockey, sulky driver, trainer, or groomer.

Certain Other Business Activities That Are Allowed on B-1

You may receive a B-1 visa to pursue certain other business activities. Examples are:

Commercial or Industrial Workers (UPDATE, 05/13/2019)

You may use a B-1 visa to install, service, or repair commercial or industrial equipment or machinery purchased from a company outside the United States or to train U.S. workers to perform such services.

The contract of sale must specifically require the seller to provide these services or training and the visa applicant must have unique knowledge that is essential to the seller’s contractual obligation to perform the services or training. The visa applicant must receive no compensation from a U.S. source.

You are not allowed to perform building or construction work, whether on-site or in-plant.  The exception is for supervising or training other workers engaged in building or construction work. But you may perform such building or construction work.

Foreign Airline Employees (UPDATE, 05-16-2016)

Foreign airline employees may use the B-1 visa if they:

  • seek to enter the United States to work for a foreign airline that is engaged in international transportation of passengers and freight;
  • work in an executive, supervisory, or highly technical capacity; and
  • otherwise meet the requirements for E visa classification but are unable to get E-1 classification solely because there is no treaty between the United States and the country of their nationality, or because they are not nationals of the airline’s country of nationality.

Foreign airlines employees who travel to the U.S. to join an aircraft for an onward international flight may also be documented as B-1 visitors. In this situation, they are not transiting the United States and are not admissible as crewmen.  Work on purely domestic flights within the United States is not allowed in B-1 status.

Clerkship (UPDATE, 08-30-2019)

Normally, applicants who seek to obtain hands-on clerkship experience do not qualify for B-1 visa classification. The exceptions that allow B-1 classification are:

  • Medical Clerkship: Students at a foreign medical school who seek to enter the U.S. to take an “elective clerkship” at a U.S. medical school’s hospital without remuneration from the hospital.  The medical clerkship is only for medical students pursuing their normal third or fourth year internship in a U.S. medical school as part of a foreign medical school degree.  (An “elective clerkship” provides practical experience and instructions in the disciplines of medicine and is supervised by faculty physicians at a U.S. medical school’s hospital as an approved part of the foreign medical school education.  It does not apply to graduate medical training, which is restricted by INA 212(e) and normally requires a J-visa.)
  • Business or Other Professional or Vocational Activities: Persons who seek to only observe the conduct of business or other professional or vocational activity, they pay for their own expenses. Persons who wish to get practical experience through on-the-job training or clerkships must instead get an H, L or J visa.

Participants in International Competitions

A professional entertainer may use the B-1 to come to the U.S. to participate in a competition for which there is no remuneration other than a prize (monetary or otherwise) and reimbursement of incidental expenses.

B-2 IS DIFFERENT FROM B-1

The B-1 is under the same B-visa classification as the B-2 visa (for tourism and temporary visits), but is less restrictive. You may participate in tourist activities on a B-1 visa or a combined B-1/B-2 visa, but may not engage in temporary business activities while on a B-2 visa only.

B-1 DOES NOT AUTHORIZE EMPLOYMENT IN THE U.S. 

The B-1 visa allows you to engage in business activities other than perform skilled or unskilled labor.  A B-1 issuance does not permit you to obtain and engage in employment while in the U.S.

A U.S. customs officer lawfully admits you to the U.S. to participate in legitimate B-1/B-2 visitor activities, and the U.S. consular officer issues the visa for legitimate B-1/B-2 purposes.  Therefore, U.S. immigration problems may occur if you perform activities that are not entirely consistent with the terms and conditions of the visa.

Remote Work or Working for a Foreign Employer

Whether remote work for a foreign employer on U.S. soil is allowed on a visitor visa does not have a clear-cut answer. During a business trip or vacation, for example, you might need to check in with your boss or team overseas. This is a grey area where it’s better to err on the side of caution.

Even if you are a freelancer, independent contractor or employee of a foreign employer, and the income source is outside the United States, you might still face U.S. immigration issues if you perform work during your B-1/B-2 visit. This is especially problematic if some clients or customers are in the U.S. or you get paid while you’re physically in the U.S.

U.S. tax law states that income from services performed for a foreign employer by someone present in the United States is deemed to be U.S. income — unless ALL THREE of the following conditions are met:

  1. You perform personal services as an employee of or under a contract with a nonresident alien individual, foreign partnership, or foreign corporation not engaged in a trade or business in the United States; or you work for an office or place of business maintained in a foreign country or possession of the United States by a U.S. corporation, U.S. partnership, or U.S. citizen or resident.
  2. You perform these services while you are a nonresident alien temporarily present in the United States for a period or periods of not more than a total of 90 days during the tax year.
  3. Your pay for these services is not more than $3,000.

Chapter 3 of IRS Publication 519, US Tax Guide for Aliens, states that if you do not meet all three conditions, your income from personal services performed in the United States is U.S. source income and is taxable in the U.S. 

The B-1/B-2 visa does not permit you to have U.S. income. Although some lawyers argue tax law is independent from immigration law, a U.S. immigration officer might find that you violated your visitor status simply because you worked on U.S. soil.

The B-1 visa and status allow you to negotiate contracts, attend business meeting and make deals to perform the work outside the United States, but not to actually do the work during your visit. The B-2 visa and status permits you to engage in tourism and recreational visits only, with very limited exceptions in special circumstances.

Exception: Personal/domestic employees of U.S. citizens living abroad, U.S. citizens on temporary assignment in the U.S., foreign nationals in nonimmigrant status, and lawful permanent residents may receive the B-1 visa to enter the U.S. and perform work as a personal/domestic employee in the employer’s household. Specific requirements must be met for them to actually get the B-1 visa for this purpose. In addition, they need to apply for and receive an employment authorization card after entering the U.S. on a B-1 visa.

WHO IS ELIGIBLE FOR THE B-1 VISA?

Temporary visitors must meet the following eligibility requirements:

1. Maintain a residence in a foreign country, which you do not intend to abandon

Under U.S. immigration law, the term “residence” is defined as the place of general abode, i.e. your principal, actual dwelling place in fact, without regard to intent. You must show strong ties to your country, including family connections, property ownership, investments, and steady employment.

2. Intend to stay in the U.S. for a specific, limited period

The period of stay must be limited and not indefinite in nature. The expected length of stay must match the stated purpose of the trip. You must show with reasonable certainty that you will leave the U.S. upon completing your visit, prior to expiration of the authorized stay.

3. Seek entry solely to engage in legitimate activities permitted by the visa

You must be coming to the U.S. only to complete activities that are allowed by your visa classification. U.S. consular officers will deny the visa and U.S. customs officers will deny your entry if they have reason to believe or know that, while in the U.S. as a visitor, you will engage in unlawful or criminal activities.

You must have the funds and make arrangements to cover the cost of the trip and your stay in the U.S. Otherwise, the U.S. consular officer or customs officer could find that you will work in the U.S. without authorization to defray expenses. Even if you have a valid visa, the customs officer may question you extensively about your travel plans to determine whether to admit you to the U.S.  You may even be issued an expedited removal order at the U.S. port of entry if the customs officer determines you have previously violated your B-visa status or intend to do so.

4. Have no immigration violations or criminal offenses that make you inadmissible, or otherwise qualify for an inadmissibility waiver 

You will not receive the visa or be admitted if you are barred from entering the U.S. due to immigration violations or criminal offenses that make you inadmissible under U.S. immigration law. These include the 3/10 year bar due to accrual of unlawful presence of more than 180 days during a prior stay; conviction for a Crime Involving Moral Turpitude (e.g. theft or fraud) that does not qualify for the petty offense or youthful offender exception; and willful misrepresentation of material facts to gain entry into the U.S.

When you are inadmissible, but are otherwise visa eligible, you may file a 212(d)(3) nonimmigrant waiver to be excused from almost all inadmissibility grounds. A separate I-212 waiver (Permission to Reapply for Admission into the United States After Deportation or Removal) is needed if you are barred due to a prior removal order or illegal (or attempted illegal) reentry into the U.S.

WORK WITH AN IMMIGRATION ATTORNEY

Failure to overcome the presumption of immigrant intent and show strong ties abroad is one of the top reasons for a visa refusal or denial. Inadmissibility grounds can also prevent a visa grant or your entry into the U.S.

Consult an experienced immigration attorney to assess your visa eligibility, advise you on the forms and documents to submit, and assist you with the application process to get the B-1 or combined B-1/B-2 visa.

For more information, read our related articles,  B-1 Visitor Visa: Traveling to the U.S. for Work as a Personal/Domestic Employee and B-2 Visitor Visa: Traveling to the U.S. for Tourism or a Temporary Visit.

Keep in mind that entering the U.S. too frequently for extended visits on a B-1 or combined B-1/B-2 visitor visa may lead to problems at the U.S. port of entry. See Birth Tourism, Frequent/Extended Trips, Immigration Status Change: 3 Things That Often Prevent Entry to the U.S. (even though they are not strictly prohibited).

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Photo by: Laura Hoffman

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B-2 Visitor Visa: Traveling to the U.S. for Tourism or a Temporary Visit

Posted on March 27, 2017 | Comments Off on B-2 Visitor Visa: Traveling to the U.S. for Tourism or a Temporary Visit

When you seek to enter the U.S. for tourism or a temporary visit, the B-2 visa or combined B-1/B-2 visa is appropriate. Only certain activities are allowed on this visa. The U.S. consular officer will not grant the B-2 visa and the U.S. customs officer will deny your entry on this visa if your reasons for travel do not fit the criteria.

WHICH ACTIVITIES ARE ALLOWED ON THE B-2 VISA? 

Legitimate B-2 visitor activities are described below. The list is not exhaustive, but is specified in the Department of State’s Foreign Affairs Manual and other official guidance as appropriate reasons for the consular officer to issue the B-2 visa.

Visitor for Pleasure

You may use the B-2 visitor visa to:

  • Engage in tourism, i.e. take a vacation (holiday) and visit places of interest
  • Make social visits to family members and friends
  • Receive medical treatment to protect your health (NOTE: the consular officer or customs officer must be satisfied you have the means to pay for the treatment, which includes doctors and hospitalization fees and related expenses.)
  • Participate in social events hosted by fraternal, social, or service organizations
  • Participate in entertainment or athletic activity (e.g. event or contest) as an amateur who is not a member of any profession associated with the activity, but instead normally performs without compensation (except for reimbursement of incidental expenses)
  • Take a short course of study, which is incidental to the visit and not for credit toward a degree
  • Temporarily stay as dependent of alien member of any branch of the U.S. Armed Forces temporarily assigned for duty in the U.S.
  • Temporarily stay as dependent of D visa crewman if you are coming to the U.S. solely to accompany the principal D visa holder

Visitor Under Special Circumstances

You may also receive the B-2 visitor visa under the following special circumstances:

Fiancé(e) of U.S. Citizen or Permanent Resident

Foreign nationals must obtain a K-1 fiancé(e), instead of the B-2 visa, if they seek to come to the U.S. to marry a U.S. citizen and apply for adjustment to permanent resident status (green card).  The U.S. Consulate, however, may grant the fiancé(e) of a U.S. citizen or lawful permanent resident (LPR) a B-2 visa if it determines the fiancé(e) will return to a residence abroad soon after the marriage.

B-2 status may also be granted if you are traveling to the U.S. to:

  • Meet the family of your U.S. citizen or permanent resident fiancé(e);
  • Become engaged;
  • Plan the wedding; or
  • Rekindle or maintain a relationship with your prospective spouse

In reality, however, B-2 visas are not routinely granted in this situation. The Consulate tends to find that fiancé(e)s of U.S. citizens (in particular) or permanent residents (in some cases) will simply overstay until they can eventually get a marriage-based green card within the U.S. Therefore, it’s necessary to present strong evidence and persuasive testimony showing you will in fact depart on time, following a temporary visit, before you proceed with the K-1 or immigrant visa process.

Fiancé(e) of Nonimmigrant in United States

Fiancé(e)s who have a residence abroad to which they intend to return, and who are eligible to receive visas, may receive B-2 visas if the purpose of the visit is to marry a nonimmigrant in the United States, who has valid nonimmigrant F, H, J, L M, O, P, or Q status.  The U.S. Consulate will not grant the visa if it determines you will remain in the U.S. after admission and apply to adjust to permanent resident status, or request a change to a non-immigrant status that does not require a residence abroad.

Proxy Marriage Spouse of Nonimmigrant in United States

A spouse married by proxy to a foreign national in the United States in valid nonimmigrant status may receive a B-2 visa to join the spouse.  Following entry to the U.S., the joining spouse must file a timely request to change to the appropriate derivative nonimmigrant status (e.g. H-4 or F-2) after the marriage is consummated.

Spouse or Child of U.S. Citizen or Permanent Resident

A foreign national spouse, biological child, or adopted child of a U.S. citizen or permanent resident may be issued a B-2 visa if he or she is only accompanying or following to join the spouse or parent for a temporary visit.

Cohabitating Partners, Extended Family Members, and Other Household Members Who Do Not Qualify for Derivative Status

 The B-2 visa is issued to those who belong to the same household of another person in long-term nonimmigrant status, but who are ineligible for derivative status. These include cohabitating partners or elderly parents of temporary workers, students, diplomats assigned to the U.S. and accompanying parent(s) of minor F-1 student. It is also appropriate for persons who belong to the same household of a U.S. citizen who normally lives and works overseas, but will be in the U.S. temporarily.

The B-2 visa is also granted to a spouse or child who qualifies for derivative status (other than derivative A or G status) but who finds it difficult or impossible to apply for the proper H-4, L-2, F-2, or other derivative visa, as long as he or she intends to maintain a residence outside the U.S. and is eligible for the B visa. Those who plan to remain in the U.S. for more than six months may request a one-year stay when they apply for admission at the U.S. port of entry.  They may then apply for extensions of stay, in six -months increments, while the principal applicant holds nonimmigrant status in the U.S.

Foreign Nationals Seeking Naturalization under INA 329 (Naturalization Through Active Duty-Service in the Armed Forces During World War I, World War II, the Korean Hostilities, or in Other Periods of Military Hostilities) 

A person who qualifies for naturalization under INA 329, and who seeks to enter the U.S. to make use of this benefit, may receive a B-2 visa without being required to maintain a foreign residence.

Children Seeking Expeditious Naturalization under INA 322 (Children of U.S. citizens who are born and residing outside the U.S. and meet the conditions to acquire certificate of citizenship)

The U.S. Consulate may grant a B-2 visa to a foreign-born child who is eligible for expeditious naturalization under INA 322.  But even when the child intends to naturalize, he or she must intend to return to a residence abroad after naturalization, i.e. overcome the presumption of immigrant intent.  The child whose parents are living abroad will normally meet this requirement, but a child whose parents reside in the U.S. will not.

The U.S. Consulate may also issue a B-2 visa to an adopted foreign-born child of a U.S. citizen who seeks to naturalize under INA 322 if he or she presents a DHS-issued Form G-56, General Call-In letter for a naturalization interview; maintains a residence abroad and does not intend to stay permanently in the U.S,; and meets other eligibility requirements.

Dependents of Alien Members of U.S. Armed Forces Eligible for Naturalization under INA 328 (Naturalization Through Service in the U.S. Armed Forces) 

A dependent of an alien member of the U.S. Armed Forces who qualifies for naturalization under INA 328 and who seeks to accompany the spouse or parent on the service member’s assignment to the U.S. may be issued a B visa. The possibility of adjustment to permanent resident status does not require a visa denial.

Foreign Nationals Enrolled in an Avocational or Recreational School

A person may receive a B-2 visa to attend a school for recreational or avocational purposes.  When the U.S. Consulate is unable to determine the nature of the school’s program, it normally asks DHS to confirm whether approval of Form I-20, Certificate of Eligibility for Nonimmigrant (F-1) Student Status for Academic and Language Students (for an F-1 student visa) is required.

Lawful Permanent Residents Who Need to Come to the U.S. for an Emergency Temporary Visit 

 The I-551, Permanent Resident Card, becomes invalid for re-entry if the lawful permanent resident (LPR) remains outside the U.S. for more than one year. If the LPR needs to return to the U.S. sooner than when a returning resident visa can be obtained, the U.S. Consulate may issue a B-2 visa for re-entry purposes.

Adoptive Child Traveling to the U.S. to Acquire Citizenship foreign-born children who did not acquire U.S. citizenship at birth through a U.S. citizen parent to acquire U.S. citizenship automatically upon fulfillment of certain conditions while under the age of 18.

The U.S. Consulate may grant a B-2 visa to a child seeking to enter the U.S. to acquire U.S. citizenship under the Child Citizenship Act of 2000 (Public Law 106-395), as long as the child shows an intent to leave the U.S. after a temporary stay.

WHO IS ELIGIBLE FOR THE B-2 VISA? 

Temporary visitors must meet the following eligibility requirements:

1. Maintain a residence in a foreign country, which you do not intend to abandon

Under U.S. immigration law, the term “residence” is defined as the place of general abode, i.e. your principal, actual dwelling place in fact, without regard to intent. You must show strong ties to your country, including family connections, property ownership, investments, and steady employment.

2. Intend to stay in the U.S. for a specific, limited period

The period of stay must be limited and not indefinite in nature. The expected length of stay must match the stated purpose of the trip. You must show with reasonable certainty that you will leave the U.S. upon completing your visit, prior to expiration of the authorized stay.

3. Seek entry solely to engage in legitimate activities permitted by the visa

You must be coming to the U.S. only to complete activities that are allowed by your visa classification. U.S. consular officers will deny the visa and U.S. customs officers will deny your entry if they have reason to believe or know that, while in the U.S. as a visitor, you will engage in unlawful or criminal activities.

You must have the funds and make arrangements to cover the cost of the trip and your stay in the U.S. Otherwise, the U.S. consular officer or customs officer will likely conclude that you will work in the U.S. without authorization to defray expenses. You could even be issued an expedited removal order at the U.S. port of entry if the customs officer determines you have previously violated your B-visa status or intend to do so.

Whether remote work for a foreign employer on U.S. soil is allowed on a visitor visa does not have a clear-cut answer. During a business trip or vacation, for example, you might need to check in with your boss or team overseas. This is a grey area where it’s better to err on the side of caution.

Even if you are a freelancer, independent contractor or employee of a foreign employer, and the income source is outside the United States, you might still face U.S. immigration issues if you perform work during your temporary visit. This is especially problematic if some clients or customers are in the U.S. or you get paid while you’re physically in the U.S.

U.S. tax law states that income from services performed for a foreign employer by someone present in the United States is deemed to be U.S. income — unless ALL THREE of the following conditions are met:

  1. You perform personal services as an employee of or under a contract with a nonresident alien individual, foreign partnership, or foreign corporation not engaged in a trade or business in the United States; or you work for an office or place of business maintained in a foreign country or possession of the United States by a U.S. corporation, U.S. partnership, or U.S. citizen or resident.
  2. You perform these services while you are a nonresident alien temporarily present in the United States for a period or periods of not more than a total of 90 days during the tax year.
  3. Your pay for these services is not more than $3,000.

Chapter 3 of IRS Publication 519, US Tax Guide for Aliens, states that if you do not meet all three conditions, your income from personal services performed in the United States is U.S. source income and is taxable in the U.S. 

The visitor visa does not permit you to have U.S. income. Although some lawyers argue tax law is independent from immigration law, a U.S. immigration officer might find that you violated your visitor status simply because you worked on U.S. soil.

At the U.S. port of entry, the U.S Customs & Border Protection has broad discretion to refuse admission and even issue an expedited removal order if it determines that you intend to work in the U.S. or you have worked in the U.S. on a prior visit. The B-1 visa and status allow you to negotiate contracts, attend business meeting and make deals to perform the work outside the United States, but not to actually do the work during your visit. The B-2 visa and status permits you to engage in tourism and recreational visits only, with limited exceptions in special circumstances.

4. Have no immigration violations or criminal offenses that make you inadmissible, or otherwise qualify for an inadmissibility waiver 

You will not receive the visa or be admitted if you are barred from entering the U.S. due to immigration violations or criminal offenses that make you inadmissible under U.S. immigration law. These include the 3/10 year bar due to accrual of unlawful presence of more than 180 days during a prior stay; conviction for a Crime Involving Moral Turpitude (e.g. theft or fraud) that does not qualify for the petty offense or youthful offender exception; and willful misrepresentation of material facts to gain entry into the U.S.

When you are inadmissible, but are otherwise visa eligible, you may file a 212(d)(3) nonimmigrant waiver to be excused from almost all inadmissibility grounds. . A separate I-212 waiver (Permission to Reapply for Admission into the United States After Deportation or Removal) is needed if you are barred due to a prior removal order or illegal (or attempted illegal) reentry into the U.S.

B-2 IS DIFFERENT FROM B-1

The B-2 is under the same B-visa classification as the B-1 Temporary Business Visitor visa, but is more limited. If you have only a B-2 visa – and not a B-1 visa or combined B-1/B-2 visa, you may not engage in any business visitor activities, such as attend business meetings or negotiate contracts.

WORK WITH AN IMMIGRATION ATTORNEY

Failure to overcome the presumption of immigrant intent and show strong ties abroad is one of the top reasons for a visa refusal or denial. Inadmissibility grounds can also prevent a visa grant or your entry into the U.S.

Consult an experienced immigration attorney to assess your visa eligibility, advise you on the forms and documents to submit, and assist you with the application process to get the B-2 or combined B-1/B-2 visa.

For more information, read our related articles, B-1 Visitor Visa: Traveling to the U.S. for Business and B-1 Visitor Visa: Traveling to the U.S. for Work as a Personal/Domestic Employee.

Keep in mind that entering the U.S. too frequently for extended visits on a B-2 or combined B-1/B-2 visitor visa may lead to problems at the U.S. port of entry. See Birth Tourism, Frequent/Extended Trips, Immigration Status Change: 3 Things That Often Prevent Entry to the U.S. (even though they are not strictly prohibited).

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Effects & Impact of Trump’s Executive Order on Protecting the Nation from Foreign Terrorist Entry Into the United States

Posted on February 4, 2017 | Comments Off on Effects & Impact of Trump’s Executive Order on Protecting the Nation from Foreign Terrorist Entry Into the United States

On day 7 of his Administration, January 27, 2017, President Trump issued his third executive order on immigration, titled Protecting the Nation from Foreign Terrorist Entry Into the United States. Of the three issued so far, this immigration order imposing a 90-day ban on “nationals of countries of particular concern,” suspending the U.S. refugee program for 120 days, and blocking Syrian refugees indefinitely is the most controversial. It led to widespread protests, outcry from some world leaders, federal court litigation, and confusion over how the order will be enforced.

Here is a description of Trump’s executive order on protecting the nation from foreign terrorist entry into the United States, including the potential effects and impact: 

Authority: In the order, Trump cites to the Constitution and federal laws, such as the Immigration & Nationality Act (INA) and 3 U.S.C. 301, as grounds for his presidential authority.

The president may set the policy and practices of immigration agencies and officials, in compliance with federal law set by Congress and the U.S. Constitution.

Purpose: Referring to the  September 11, 2001 terrorist attacks, the order notes, “State Department policy prevented consular officers from properly scrutinizing the visa applications of several of the 19 foreign nationals who went on to murder nearly 3,000 Americans.” It further states that amendments to the visa process, after September 11, “did not stop attacks by foreign nationals who were admitted to the United States.”

The order next generalizes, “Numerous foreign-born individuals have been convicted or implicated in terrorism-related crimes since September 11, 2001, including foreign nationals who entered the United States after receiving visitor, student, or employment visas, or who entered through the United States refugee resettlement program.”

The order states the U.S. must not admit the following persons:

  • Those who bear hostile attitudes toward it and its founding principles
  • Those who do not support the Constitution
  • Those who would place violent ideologies over American law
  • Those who engage in acts of bigotry or hatred (including “honor” killings, other forms of violence against women, or the persecution of those who practice religions different from their own)
  • Those who would oppress Americans of any race, gender, or sexual orientation

Policy Highlights:

1.  90-Day Suspension of Issuance of Visas and Other Immigration Benefits to Nationals of Countries of Particular Concern  (Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen)

The President invoked section 212(f) of the INA, 8 U.S.C. 1182(f), to declare that the immigrant and nonimmigrant entry into the United States of aliens (nationals) from countries referred to in section 217(a)(12) of  the INA, 8 U.S.C. 1187(a)(12), would be detrimental to U.S. interests.

The order does not specifically list the “countries of particular concern.” But a reference to section 217(a)(12) (Visa Waiver Program for certain visitors), the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 (signed by President Obama in December 2015, as a rider on an omnibus spending bill), and related announcements indicate they are Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen. The White House has confirmed these seven countries are affected by the temporary ban.

The order suspends entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of the order. The exceptions are foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas. The Secretaries of State and Homeland Security may also, on a case-by-case basis, and when in the national interest, issue visas or other benefits to nationals of countries for which visas and benefits are otherwise blocked.

The order explains the 90-day suspension is to “reduce investigative burdens on relevant agencies during the review period,” prioritize resources for the screening of foreign nationals, and implement adequate standards to bar foreign terrorists or criminals from entering the U.S.

The President instructs the Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, to determine the information needed from any country to ensure visas, admission, or other immigration benefits are not issued to persons posing a security or public-safety threat. They have 30 days to submit a report on the results of their review to the President. The report must include the Secretary’s determination of what information is needed to issue visas and other immigration benefits, plus a list of countries that do not provide adequate information.

The Secretary of State must then request all foreign governments that do not provide the required information on their nationals to start doing so within 60 days. After the 60-day period, the Secretary of Homeland Security, in consultation with the Secretary of State, must provide a list of countries that do not provide the information requested. The President may then issue another proclamation prohibiting the entry of nationals from those countries (except persons with diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas), until compliance occurs.

2. Implement Uniform Screening Standards for All Immigration Programs

The order calls for a uniform screening standard and procedure, including:

  • in-person interviews for all applicants;
  • a database of identity documents provided by applicants;
  • amended application forms that include questions aimed at identifying fraudulent answers and malicious intent;
  • a mechanism to ensure that the applicant is who the applicant claims to be;
  • a process to evaluate the applicant’s likelihood of becoming a positively contributing member of society and the applicant’s ability to make contributions to the national interest;
  • a mechanism to assess whether or not the applicant has the intent to commit criminal or terrorist acts after entering the United States.

3. Realignment of the U.S. Refugee Admissions Program for Fiscal Year 2017 

The order suspends refugee admissions for 120 days.  During this period, the Secretary of State, in conjunction with the Secretary of Homeland Security and in consultation with the Director of National Intelligence, shall review the U.S. Refugee Admissions Program (USRAP) to determine what additional procedures should be taken to ensure refugee status is not granted to those who pose a threat to the security and welfare of the United States, and shall implement these procedures.

Refugee applicants who are already in the USRAP process must first complete these revised procedures before they are admitted to the U.S.  After the 120-day period expires, the Secretary of State shall resume USRAP admissions only for nationals of countries for which the Secretary of State, the Secretary of Homeland Security, and the Director of National Intelligence have determined the additional procedures are enough to protect national security.

Once refugee admissions resume, priority will be given to refugee claims made by persons on the basis of religious-based persecution, provided the religion is a minority religion in the person’s country of nationality. The Secretaries of State and Homeland Security shall recommend legislation that would assist with such prioritization.

The order bars Syrian refugees indefinitely. It states, ” the entry of nationals of Syria as refugees is detrimental to the interests of the United States” and suspends their entry until the President determines sufficient changes have been made to the USRAP to ensure their admission is consistent with the national interest.

The order adds, “the entry of more than 50,000 refugees in fiscal year 2017 would be detrimental to the interests of the United States,” and suspends their entry until the President determines additional admissions would be in the national interest.

During the suspension, refugees may be admitted on a case-by-case basis, but only if it is in the national interest — including when the person is a religious minority in his country facing religious persecution, when admitting the person would enable the U.S. to abide by a preexisting international agreement, or when the person is in transit and denying admission would cause undue hardship — and it would not pose a risk to national security.

The order also seeks to give state and local jurisdictions a role in deciding the placement or settlement of refugees in their states and cities.

4. Expedited Completion of the Biometric Entry-Exit Tracking System

The order directs the Secretary of Homeland Security to expedite the completion and implementation of a biometric entry-exit tracking system for all travelers to the United States, as recommended by the National Commission on Terrorist Attacks Upon the United States.

5.  Visa Interview Security

The order suspends the Visa Interview Waiver Program (not the Visa Waiver Program). The VIWP allowed consular officers to exempt low-risk/no-risk applicants from in-person interviews if they met certain criteria, including seeking to renew their temporary visas within a year of expiration.

Effects and Impact

1. Temporary banning of nationals from certain countries

The Trump Administration insists the temporary suspension is not a “Muslim ban,” but a temporary halt to better prevent  terrorists attacks in the United States.

Section 212 (f) of the Immigration & Nationality Act allows the President to suspend entry or impose travel restrictions in the national interest. It states: 

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

This is the first time a President, however, has used the statute to ban an entire nation from designated countries. The non-discrimination provision of 8 U.S.C. 1152(a)(1)(A) also states, “no person shall…be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.”

Because the White House says the order aims to stop terrorist attacks, which is in the national interest, critics question why certain countries are not on the list and others are.  Of the 19 hijackers involved in the September 11th terrorist attack, 15 were from Saudi Arabia, two from United Arab Emirates, one from Egypt and one from Lebanon. No fatal terrorist attacks were carried out by nationals from the seven countries targeted by Trump’s ban.

The Trump Administration pointed out the seven countries on the list originated from a law that Obama signed, in which nationals of or persons who traveled to Iran, Iraq, Sudan, Syria Libya, Somalia, and Yemen are prohibited from using the Visa Waiver Program (VWP) and must obtain visas to enter the U.S. The VWP allows citizens of more than 30 countries to visit the U.S. without a visa, as long as they are eligible (e.g. have no immigration violations) and seek entry as a tourist for 90 days or less.

Trump’s order banning entry of nationals from certain countries – even when they have valid visas or entry documents – is unprecedented. Although the suspension is temporary, the order indicates it could become permanent if the countries do not provide adequate information  on their nationals, as requested by the U.S. government. The Administration has also said the list could expand to include other countries.

War-torn countries with dysfunctional governments are unlikely to have or to hand over reliable information or public records on their nationals. Yet the order allows for a Presidential proclamation to continue a ban on nationals from countries that do not provide requested information.

Trump’s order went into effect as soon as he signed it. Airlines and immigration agencies were confused about how to enforce the ban. To date, the latest information is as follows:

U.S. citizens. Persons who hold a U.S. passport – whether as a natural-born or naturalized citizen – will be admitted to the country. The U.S. Customs & Border Protection, however, has authority to question citizens, especially if they have traveled to designated countries.

Dual citizens. Persons who hold a passport from a designated country and a passport from a non-designated country may choose how they present themselves for entry. Dual nationals should present the passport from the non-designated country, with a valid visa, to be admitted to the U.S. But they may be subject to questioning by the CBP, especially if they have traveled to designated countries.

Lawful permanent residents. Green card holders, even when they hold passports from designated countries, will be admitted to the U.S., absent derogatory information. They may, however, be subject to secondary inspection by the CBP just as they have always been.

Trump’s order bans immigrants (permanent residents/green card holders) from the countries of concern, but states a waiver may be issued in the national interest. In a statement issued on January 29, DHS Secretary John Kelly provided a blanket waiver stating, “I hereby deem the entry of lawful permanent residents to be in the national interest.” Kelly added, “Accordingly, absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status will be a dispositive factor in our case-by-case determinations.”

Nonimmigrants from designated countries. Persons from designated countries will not be allowed to enter the U.S. as a visitor or in any other nonimmigrant visa category (except diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas). They may withdraw their application for admission and avoid an expedited removal order.

2. Heightened screening of applicants for visas and all other immigration benefits

Trump’s order includes revisions to the screening standard and procedures for persons applying for immigration benefits (e.g. nonimmigrant visas,  immigrant visas, and permanent resident status). It involves amendments to the application forms to detect fraud and malicious intent.

The U.S. immigration agencies and State Department currently use stringent screening methods and require heavy documentation before they issue immigration benefits. Fingerprints are taken and background checks are run before the benefit is granted.

The Form DS-160 nonimmigrant visa application, Form DS-260 immigrant visa application, and Form I-485 application for permanent residence include screening questions related to the person’s identity, travel history, immigration violations, and criminal history. They also include security and background questions, such as whether the person has ever been a member of a terrorist organization or committed any terrorist activity.

Adding more questions to the application forms is unlikely to reveal material information on the person’s propensity or intent to commit terrorist acts. The questions should also not result in discrimination based on protected grounds (e.g religious beliefs) or elicit irrelevant information (e.g. only naturalization applicants are required to support the Constitution).

A review of attacks linked to radicalized Muslims in the U.S. since Sept. 11, 2001, does not indicate a high correlation between lack of visa screening and terrorist attacks:

  • 2016 – Omar Mateen shot dead 49 at the Pulse nightclub in Orlando. Although his parents were from Afghanistan, he was born in New York.
  • 2015 – Syed Rizwan Farook and his wife Tashfeen Malik shot dead 14 people at an office in San Bernardino, Ca., before they were killed. He was born in Chicago to parents from Pakistan. She was born in Pakistan and raised mostly in Saudi Arabia.
  • 2015 – Mohammad Abdulazeez opened fire at two military recruiting centers in Chattanooga, Tenn., killing five U.S. military personnel. He was a naturalized American who was born in Kuwait to parents who were Jordanian and Palestinian.
  • 2013 – Two brothers, Tamerlan and Dzhokhar Tsarnaev carried out the Boston Marathon bombing that killed three. Tamerlan was born in the Soviet Union (now southern Russia), and Dzokhar was born in Kyrgyzstan. They were admitted to the U.S. on visitor visas as young children, along with their parents, before they were granted asylum and then permanent residence.
  • 2009 – Army Maj. Nidal Hasan, shot dead 13 in Ft. Hood, Texas. Hasan was born in Virginia to Palestinian parents who had immigrated from the West Bank.
  • 2009 – Abdulhakim Muhammad shot and killed an Army private at a recruiting center in Little Rock. He was born in Memphis to a Christian family, but converted to Islam and changed his name from Carlos Bledsoe.

Extreme vetting, as Trump calls it, could slow down visa and green card processing, deter family reunification, affect U.S. businesses in need of foreign national talent, and discourage travel to the U.S. that benefits the economy. Immediately after the order was issued, U.S. Consulates stopped processing visas,  cancelled visa interviews, and revoked visas when the applicant is a national of a designated country. USCIS also suspended green card processing for persons affected by the executive order.

3. Restricting refugee admissions

The 120-day suspension of the refugee program and indefinite ban on entry of all Syrian refugees has been met with strong opposition. Refugees have not been linked to terrorists attacks in the U.S., as the executive order seems to claim.

Refugees are among the most vulnerable groups in the world. They must show they have been persecuted or have a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, and/or political opinion in their country to obtain refugee status in the U.S.

Refugees undergo thorough background checks  and heavy scrutiny to be admitted to the country. They face recurrent vetting (background checks) throughout the refugee screening process. Those who are cleared to come to the U.S. must apply for a green card within one year, which requires a new cycle of vetting. Because rigorous screening already exists for refugees, the ban is criticized for being overreaching and discriminatory.

According to the executive order, priority will be given to applicants who are suffering religious-based prosecution, but only if they are minorities in their country. Trump said the move would protect Christians in Muslim-majority countries, which critics say amounts to religious discrimination.

Giving more power to states and localities to determine the placement of refugees in their jurisdiction is also subject to legal challenges.  Based on reports that one person involved in the November 2015 Paris terror attacks was carrying a Syrian passport (which may have been fake or stolen, according to subsequent reports), 31 governors said they opposed letting Syrian refugees into their states. While states have some discretion as to whether their agencies participate in the federally funded Refugee Resettlement Program,  they may not refuse assistance to refugees based on race, religion, nationality, sex, or political opinion. They may also not prevent refugees from moving into their state.

4. Tracking entries and exits

The biometric entry-exit screening system aims to track foreign visitors’ arrival and departure using information like fingerprints. Such a system was first required by the Illegal Immigration Reform and Immigrant Responsibility Act signed by President Clinton in 1996. It was further recommended by the independent, bipartisan 9/11 Commission in 2004.

The “entry” part of the system is in place. Persons who enter the U.S. on a visa or the Visa Waiver Program normally provide biometric information (fingerprints and a digital photograph) to U.S. border officials. Outside of a few pilot programs, travelers face no biometric exit screening.

CBP previously issued a paper Form I-94 (Arrival/Departure Record), which was to be turned into the commercial carrier or CBP upon departure. CBP switched to scanning a traveler’s passport, generating an electronic arrival record with data elements found on the current paper Form I-94, and making the electronic I-94 available on its website. CBP records departures electronically via manifest information provided by the carrier or its own system.

In a fiscal year 2016 report to Congress, then-Secretary of Homeland Security, Jeh Johnson, announced CBP would redouble its efforts to complete the biometric entry/exit system, and  begin implementing biometric exit, starting at the highest volume U.S. airports, in 2018.

This report noted that about 99% of nonimmigrant visitors arriving at air and sea ports of entry complied with the terms of their admission. It added the biometric exit program is not limited to collecting biometric information from a departing passenger, but must also help ensure the passenger actually departs the U.S.

The report stated that obstacles included existing  infrastructure at U.S. airports, which did not support biometric exit control procedures. Thus, “deploying an effective biometric exit system includes designing and developing a new process for verifying departure where none exists today and doing so in a very complex and time-sensitive operational environment.”

For the system to work properly, it needs to cover all land, air, and sea ports of entry, which is a major undertaking. Trump’s order to expedite the entry-exit system is a continuation of prior Administrations’ efforts.

5. Suspending the Visa Interview Waiver Program

The suspension of the Visa Interview Waiver Program means consular officers must interview all visa applicants, regardless of whether they previously met the criteria for a visa grant without an interview. Children under age 14, applicants over age 80, and applicants whose visas recently expired may no longer obtain visa renewals without an in-person interview at the Consulate.

In-person interviews for low-risk/no-risk applicants could make even routine applications more complicated and time consuming and create bottlenecks at U.S. Consulates handling frequent visitors. Discouraging tourism and visits to the U.S. by law-abiding persons may result from this new inconvenience.

Conclusion

The 90-day bar on entry of nationals from affected countries, 120-day suspension of the refugee program, and indefinite ban on Syrian refugees triggered fear and uncertainty among immigrant groups. After the executive order was issued, nationals of designated countries with valid visas and refugees who had completed the screening process were prevented from boarding flights or denied entry to the U.S.

Although the White House deems the suspension as temporary, the executive order states all the timelines may be extended by a new Presidential proclamation.  In the meantime, the situation is in flux due to legal challenges and the Administration’s backing down on certain aspects. Dozens of federal court lawsuits have been filed to challenge the bans. Attorney Generals of several states, including Minnesota, Washington, New York, Virginia and Massachusetts, are also taking legal action against the ban, calling it unconstitutional.

On January 28, 2017, the U.S. District Court for the Eastern District of New York was the first to issue an emergency stay of removal, preventing the Department of Homeland Security from removing individuals with approved refugee status, holders of valid immigrant and non-immigrant visas, and other individuals from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen legally authorized to enter the United States.

On February 3, 2017, the U.S. District Court for the Western District of Washington, in Seattle, issued a restraining order temporarily blocking the ban on entry to the United States, nationwide. Visa holders and refugees from the designated countries may be admitted to the U.S. while the court order is in effect. The White House vowed to fight it.

The executive order stops short of Trump’s campaign call for a “total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.” Still, the ban on entire nations from designated countries has been met with legal battles, massive protests and ongoing criticism. For the executive order to come close to accomplishing its stated purpose, it will have to first survive the backlash.

For information on Trump’s other executive orders on immigration, read:

Effects & Impact of Trump’s Executive Order on Border Security and Immigration Enforcement Improvements

Effects & Impact of Trump’s Executive Order on Enhancing Public Safety in the Interior of the United States

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Effects & Impact of Trump’s Executive Order on Enhancing Public Safety in the Interior of the United States

Posted on January 30, 2017 | Comments Off on Effects & Impact of Trump’s Executive Order on Enhancing Public Safety in the Interior of the United States

On day five of his Administration, January 25, 2017, President Donald Trump issued his second executive order on immigration, titled, Enhancing Public Safety in the Interior of the United States. It focuses on the removal of persons who illegally enter the U.S. and persons who overstay or otherwise violate the terms of their visas.

Here is a description of Trump’s executive order on enhancing public safety within the United States, including the potential effects and impact: 

Authority: In the order, Trump cites to the Constitution and federal laws, such as the Immigration & Nationality Act (INA), as grounds for his presidential authority.

The president may set the policy and practices of immigration agencies and officials, in compliance with federal law set by Congress and the U.S. Constitution.

Purpose: The order directs departments and agencies to employ all lawful means to enforce federal immigration laws and ensure the removal of persons who have no right to be in the United States.

Policy Highlights: 

1. Faithful Execution of Immigration Laws Against All Removable Persons. The executive order notes, “Many aliens who illegally enter the United States and those who overstay or otherwise violate the terms of their visas present a significant threat to national security and public safety.  This is particularly so for aliens who engage in criminal conduct in the United States.”

2. Enforcement Priorities. The executive order instructs the Secretary of Homeland Security to prioritize for removal all persons described in the Immigration & Nationality Act as inadmissible under sections 212(a)(2) (Criminal and related Grounds), 212(a)(3) (Security and related grounds), 212 (a)(6)(C) (Willful misrepresentation to gain immigration benefit) and 235 (Expedited Removal of inadmissible arriving alien), or removable under sections 237(a)(2) (Criminal offenses) and (4)(Security and related grounds).

The order also prioritizes removable persons who:

(a)  Have been convicted of any criminal offense;

(b)  Have been charged with any criminal offense, where such charge has not been resolved;

(c)  Have committed acts that constitute a chargeable criminal offense;

(d)  Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency;

(e)  Have abused any program related to receipt of public benefits;

(f)  Are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States; or

(g)  In the judgment of an immigration officer, otherwise pose a risk to public safety or national security.

3. Civil Fines and Penalties. The executive order instructs the Secretary to issue guidance and promulgate regulations, where required by law, to assess and collect fines and penalties, as  authorized, from persons unlawfully present in the U.S. and from those who facilitate their presence in the U.S.

4. Additional Enforcement and Removal Officers. The executive order instructs the Secretary, through the Director of U.S. Immigration & Customs Enforcement, and to the extent permitted by law and subject to availability of funds, to hire 10,000 additional immigration officers to perform law enforcement functions.

5. Federal-State Agreements. The executive order instructs the Secretary to immediately engage with the Governors of the States, as well as local officials, to enter into INA 287(g) agreements. This allows for State and local law enforcement officials to perform functions of the immigration officers in relation to the investigation, apprehension , or detention of aliens in the United States under the Secretary’s direction and supervision.

6. Terminate the Priority Enforcement Program (PEP) outlined in the November 20, 2014 Memorandum and reinstate the Secure Communities program. The executive order instructs the Secretary to take all appropriate action to end the PEP program, which prioritizes removable persons who have been convicted of an offense listed under the DHS civil immigration enforcement priorities, has intentionally participated in an organized criminal gang to further the illegal activity of the gang, or poses a danger to national security. Trump’s order calls for the revival of the Secure Communities program, which was discontinued by then-Secretary Jeh Johnson in November 2014.

7. Refusal of Federal Grants to “Sanctuary Jurisdictions.” The executive order states that it is the executive branch’s policy to ensure that a State shall comply with 8 U.S.C. 1373 (Communication between government agencies and the Immigration and Naturalization Service).

Trump’s order adds that the Attorney General and the Secretary, in their discretion and to the extent consistent with law, shall ensure jurisdictions that refuse to comply with 8 U.S.C. 1373 are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary.  It further notes, “The Attorney General shall take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.”

The order also instructs the Secretary to publish a weekly list of all the crimes committed by immigrants and the jurisdictions that did not honor detainers with respect to such immigrants.

8.  Create an “Office for Victims of Crimes Committed by Removable Aliens.” The executive order calls for the establishment of an office, within the U.S. Immigration & Customs Enforcement, to provide “professional services to victims of crimes committed by removable aliens and the family members of such victims.”  The order also instructs the office to “provide quarterly reports  studying the effects of the victimization by criminal aliens present in the United States.”

Effects and Impact:

1. Broadening enforcement priorities

The executive order significantly broadens immigration enforcement priorities. It eliminates guidance in the November 20, 2014 memorandum issued by then-Secretary Jeh Johnson under the Obama Administration.

In that memorandum, Johnson noted that Priority 1 for immigration enforcement included aliens engaged in or suspected of terrorism or espionage; aliens apprehended at the border or ports of entry while attempting to unlawfully enter the United States; aliens convicted of an offense for which an element was active participation in a criminal street gang; aliens convicted of a felony as defined by state statute; and aliens convicted of an “aggravated felony” as defined by federal law. Priority 2 included aliens convicted of three or more misdemeanor offenses, aliens convicted of a “significant misdemeanor” (i.e. domestic violence ; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or driving under the influence); aliens apprehended in the United States after unlawfully entering or re-entering the United States and who cannot prove they have been physically present in the United States continuously since January 1, 2014 ; and aliens who, in the judgment of an ICE Field Office Director, USCIS District Director, or USCIS Service Center Director, have significantly abused the visa or visa waiver programs.

In contrast, Trump’s executive order prioritizes persons who have been convicted of any criminal offense, which may include even minor infractions and misdemeanors. It also prioritizes any removable person who has been charged with (but not actually convicted of) a crime, or abused any program related to receipt of public benefits. It further encourages the removal of any person who an immigration officer deems is a danger to the “public safety or national security,” thus giving wide discretionary power to individual officers.

New guidance has yet to be issued to local immigration officers on how to implement the executive order. Some ICE Field Officers have stopped granting requests for prosecutorial discretion (PD), as described in the November 20, 2014 memorandum, in light of Trump’s order unless further guidance permits this relief. Others continue to grant PD based on prior directive under the Obama Administration, unless new instructions are provided.

With over 500,000 removal cases pending in fiscal year 2017, and immigrants facing years long delays before a judge makes a final decision on their case, the immigration court system is already heavily backlogged. Prioritizing removable persons who do not pose a threat to public safety will make it harder to focus on those who do.

2. Reinstating the 287(g) partnerships and Secure Communities program

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 added section 287(g) to the Immigration & Nationality Act, permitting the delegation of immigration officer duties to deputized state officers and employees. The 287(g) program was credited by ICE for identifying more than 402,079 potentially removable aliens – mostly at local jails – from January 2006 through September 30, 2015.   In a December 20, 2012 news release, however, ICE announced it would phase out the 287(g) program in favor of other, more efficient enforcement programs, such as Secure Communities.

In November 2014, then-Secretary of Homeland Security, Jeh Johnson, issued a memorandum discontinuing the Secure Communities program because it “attracted a great deal of criticism, is widely misunderstood, and is embroiled in litigation…” In its place, Johnson introduced the Priority Enforcement Program to focus on convicted criminals and others who pose a danger to public safety. The memorandum instructed ICE to replace requests for detention (i.e., requests that an agency hold an individual beyond the point at which they would otherwise be released) with requests for notification (i.e. , requests that state or local law enforcement notify ICE of a pending release during the time that person is otherwise in custody under state or local authority).

Trump’s executive order promises to reinstate 287(g) partnerships and the Secure Communities program, which were criticized for fueling community mistrust in the police, being prone to racial profiling, increasing the use of immigration detainers to the detriment of the criminal justice system, and creating confusion over the roles of local, state, and federal agents.

3. Penalizing “sanctuary” cities, counties or states

The executive order threatens to withhold federal grants to jurisdictions (cities, counties, and states) that do not comply with 8 U.S.C. 1373. The order does not specifically define “sanctuary jurisdiction,” but the term generally refers to those that decline federal requests to hold arrestees in jail due to their immigration status or to collect immigration status from suspects.

Since Trump’s election, “sanctuary” cities like New York, Minneapolis-St. Paul, San Francisco and Seattle have vowed to limit their cooperation with federal immigration authorities. They won’t stop immigration authorities from enforcing federal law within their boundaries. But they will focus on local law enforcement so residents don’t avoid talking to the police out of fear of deportation risks or immigration consequences.

Whether federal funds may be withheld for the purpose of forcing “sanctuary jurisdictions” to support immigration enforcement is subject to legal challenges. Detaining individuals after a scheduled release date, to assist with federal immigration enforcement, may violate immigration and Constitutional law.

Furthermore, 8 U.S.C. 1373 merely requires communication between government agencies and the immigration agencies. It addresses the exchange of information regarding citizenship and immigration status among federal, state, and local government entities and officials.

Subsection (a) states federal, state and local government entities and officials may not “prohibit, or in any way restrict” government officials or entities from sending to, or receiving from, federal immigration officers information concerning an individual’s citizenship or immigration status.

Subsection (b) provides that no person or agency may “prohibit, or in any way restrict,” a federal, state, or local government entity from (1) sending to, or requesting or receiving from, federal immigration officers information regarding an individual’s immigration status, (2) maintaining such information, or (3) exchanging such information with any other federal, state, or local government entity.

Section 1373 prohibits government entities and officials from prohibiting or restricting intergovernmental exchange of such information. But it does not impose an affirmative duty on states and localities to collect information from individuals regarding their immigration status, nor does it require states and localities to take specific actions upon obtaining such information.

Conclusion

Expanding immigration enforcement priorities, reviving the 287(g) and Secure Communities programs, and threatening to penalize “sanctuary jurisdictions” are in line with Trump’s campaign positions.  Nevertheless, they are costly and likely ineffective strategies for protecting the American public from dangerous “aliens who engage in criminal conduct.”

For information on Trump’s other executive orders on immigration, read:

Effects & Impact of Trump’s Executive Order on Border Security and Immigration Enforcement Improvements

Effects & Impact of Trump’s Executive Order on Protecting the Nation from Foreign Terrorist Entry Into the United States

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Photo by: Neon Tommy

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Effects & Impact of Trump’s Executive Order on Border Security and Immigration Enforcement Improvements

Posted on January 27, 2017 | Comments Off on Effects & Impact of Trump’s Executive Order on Border Security and Immigration Enforcement Improvements

On day five of his Administration, January 25, 2017, President Donald Trump issued his first executive order on immigration, titled, Border Security and Immigration Enforcement Improvements. It prioritizes the detention and removal of unauthorized immigrants apprehended at the U.S.-Mexico border.

Here is a description of Trump’s executive order on border security and immigration enforcement, including the potential effects and impact: 

Authority: In the order, Trump cites to the Constitution and federal laws, such as the Immigration & Nationality Act (INA), the Secure Fence Act of 2006, and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, as grounds for his presidential authority.

The president may set the policy and practices of immigration agencies and officials, in compliance with federal law set by Congress and the U.S. Constitution.

Purpose: The order directs departments and agencies to “deploy all lawful means to secure the Nation’s southern border, to prevent further illegal immigration into the United States, and to repatriate illegal aliens swiftly, consistently, and humanely.”

Policy Highlights: 

1. Physical Wall. The executive order instructs the Secretary of Homeland Security to take steps to immediately plan, design and construct a physical wall along the southern border. The Secretary must identify and allocate federal funds for planning, designing and constructing the wall.

“Wall” means “a contiguous, physical wall or other similarly secure, contiguous, and impassable physical barrier.” The “southern border” means “contiguous land border between the United States and Mexico, including all points of entry.”

2. Detention Facilities. The executive order instructs the Secretary to allocate resources to immediately construct, operate, control, or establish contracts to construct, operate or control facilities to detain aliens at or near the land border with Mexico. The Secretary shall immediately assign asylum officers and immigration judges to detention facilities for the purpose of conducting reasonable fear determinations and removal proceedings, respectively.

3. Detention for Illegal Entry (End “Catch-and-Release”). The executive order instructs the Secretary to take immediate, appropriate actions to ensure the detention of aliens apprehended for violating immigration law, pending the outcome of their removal proceedings or their removal from the U.S. The Secretary shall issue new policy guidance to all Department of Homeland Security personnel on detention use, including the termination of “catch and release,” which involves persons being released in the U.S. shortly after their apprehension, and while their removal proceedings are pending.

4. Additional Border Patrol Agents. The executive order instructs the Secretary to take appropriate action to hire 5,000 additional Border Patrol agents, and ensure they are assigned to duty as soon as is practicable.

5.  Foreign Aid Reporting. The executive order directs all executive departments and agencies to quantify federal aid or assistance to the Government of Mexico on an annual basis for the past 5 years.

6. Federal-State Agreements. The executive order instructs the Secretary to immediately engage with the Governors of the States, as well as local officials, to enter into INA 287(g) agreements. This allows for State and local law enforcement officials to perform functions of the immigration officers in relation to the investigation, apprehension , or detention of aliens in the United States under the Secretary’s direction and supervision.

7. Parole, Asylum, and Removal.  The executive order instructs the Secretary to take immediate, appropriate action to ensure the parole and asylum provisions of immigration law are not exploited to prevent the removal of otherwise removable aliens.

8. Priority Enforcement. The executive order instructs the Attorney General to establish prosecution guidelines and allocate resources to ensure federal prosecutors give high priority to prosecutions of offenses connected to the southern border.

Effects and Impact:

1.  Building the wall 

The estimated cost of building the wall is at least $10 billion. During his election campaign, Trump stated Mexico will pay for it.  But his  executive order calls for the allocation of federal funds to plan, design and construct the wall. Congress must approve funding for any new physical barrier along the southern border. This means American taxpayers will front the cost for the wall.

Trump says Mexico will pay the money back later. His Administration suggested imposing a 20% tax on goods imported  from Mexico to pay for the wall. But experts say this will lead to higher prices for American consumers, result in trade wars, and jeopardize U.S. jobs.

Another idea floated by the Administration is seizing or taxing remittance payments from immigrants sending money earned in the U.S. (their country of residence) to their families in Mexico (their native country). Trump has said the USA Patriot Act anti-terrorism law may be used to accomplish this feat, but such an action will likely be met with legal battles, logistical obstacles, and economic drawbacks.

Between 2000 and 2010, U.S. taxpayers spent $90 billion on border security. The costs involve deploying National Guard troops to the border, paying U.S. Customs and Border Protection (CBP) agents, building barriers, employing drug-sniffing dogs, and using predator drones.

In 2006, under the Bush Administration, Boeing and other companies were awarded a federal contract, named Secure Border Initiative Net (SBInet), to build a high-tech, “virtual fence” along the southwest border. Most of the 2,000-mile border between Mexico and the U.S includes desert plains, steep hills and other natural barriers that are hard to cross. At the time, about 88 miles of physical fencing existed and the U.S. government planned to increase the physical fences to 370 miles by the end of the following year.

The Obama Administration embraced SBInet, but cancelled the project in 2011, following mounting questions from Congress regarding feasibility, viability, cost and effectiveness. By that point, about $1 billion had been spent.

Skepticism concerning Trump’s proposed wall is warranted. John Kelly, who was recently sworn in as Secretary of Homeland Security, said a physical barrier is not enough. In his confirmation hearing, he stated, “If you build a wall, you would still have to back that wall up with patrolling by human beings, by sensors, by observation devices.”

2. Increasing Detentions and Expedited Removals

Enormous amounts of manpower, resources, and technology are already dedicated to securing the nation’s borders. In 2014, the number of Border Patrol agents grew to nearly 21,000, over a 500%  increase from 1992 when there were about 4,000 agents.

In July 2006, then-Secretary of Homeland Security, Michael Chertoff, announced the  end of the”catch and release” policy. Since then, the Department of Homeland Security (DHS) began detaining more individuals while they wait for their immigration court dates. On average, in 2006, DHS detained 21,450 people on a daily basis, compared to over 40,000 this year.

DHS also increased the issuance of expedited removal orders to persons caught at the border, rather than allow them to return without the legal consequences of a removal. In 2014, DHS removed 414,481 persons, compared to 280,974 persons in 2006.

Trump’s executive order aims to increase the size of the enforcement agencies, create more detention facilities for persons apprehended along the southern border, and end “catch and release.”

Although the “catch and release” policy ended under the Bush Administration, the Obama Administration issued a Policy Memorandum on the apprehension, detention and removal or undocumented immigrants, which some labeled as “catch and release 2.0”. The policy divided enforcement priorities into three general categories: Priority 1: Aliens who pose a threat to national security, border security, or public safety. Priority 2: Aliens who are misdemeanants and new immigration violators.  Priority 3: All other immigration violators.

The Policy Memorandum instructed the agencies to focus on priority one and priority two offenders, instead of wasting resources on arresting and detaining priority three offenders. Because Trump’s executive order does not make these distinctions, it gives immigration enforcement agents more freedom to apply the detention and expedited removal process to all persons who they find ineligible for relief, particularly those apprehended at the border.

Federal funds must be allocated to operate detention facilities and detain hundreds of thousands of immigrants each year. The use of detention facilities is a very costly way to deter illegal crossings or other immigration violations. More affordable alternatives include parole/release on own recognizance, bonds, regular check-ins with immigration agents, regular home visits and check-ins, telephonic monitoring, and electronic ankle bracelet monitoring.

The executive order, which claims abuse of parole and asylum provisions, could also result in due process issues for asylum-seeking families fleeing to the border. This includes women and children from the Northern Triangle (Honduras, Guatemala and El Salvador) with credible asylum claims. Human rights groups and immigration advocates have raised concerns about detaining individuals escaping violence and persecution in their home countries. There are more humane and cost-effective alternatives to detention.

3. Deputizing State and Local Law Enforcement Officers to Perform the Duties of Federal Immigration Agents

Section 287(g) of the INA allows delegation of immigration authority to state and local law enforcement officers.  The 287(g) program permits a state or local law enforcement entity to partner with U.S. Immigration & Customs Enforcement (ICE), under a joint Memorandum of Agreement, to enforce federal immigration law in their jurisdiction.

The 287(g) program was criticized for damaging public safety, being prone to racial profiling, and lacking oversight.  In 2009, ICE revised the 287(g) program to prioritize the arrest and detention of undocumented immigrants with criminal histories. In a December 2012 news release, ICE announced it would not renew any of its agreements with state and local law enforcement agencies that operate task forces under the 287(g) program.

At that point, ICE concluded that other enforcement programs, including Secure Communities, are a more efficient use of resources for focusing on priority cases. Introduced in 2008, Secure Communities was a DHS program designed to identify immigrants in U.S. jails who are removable under immigration law. Participating jails sent the arrestee’s fingerprints not only to criminal databases, but also to immigration databases. No local law enforcement agencies were deputized to enforce immigration laws and ICE had only a technological presence in jails and prisons.

In November 2014, then-Secretary of Homeland Security, Jeh Johnson, issued a memorandum discontinuing the Secure Communities program, and replacing it with the Priority Enforcement Program to focus on convicted criminals and others who pose a danger to public safety. The memorandum instructed ICE to replace requests for detention (i.e., requests that an agency hold an individual beyond the point at which they would otherwise be released) with requests for notification (i.e. , requests that state or local law enforcement notify ICE of a pending release during the time that person is otherwise in custody under state or local authority).

Trump’s executive order promises to revive the 287(g) program, which allows states and localities to engage in immigration enforcement to supplement federal efforts. This practice can create mistrust of local law enforcement and involve the use of limited resources to detain and subsequently remove persons with only traffic stops or minor infractions.

With over 500,000 removal cases pending in fiscal year 2017, and immigrants facing years long delays before a judge makes a final decision on their case, the immigration court system is already heavily backlogged. 287(g) agreements fail to prioritize dangerous criminals over undocumented immigrants who pose no threat to public safety. They also tend to reduce cooperation from immigrant communities, which is crucial to preventing and investigating crimes.

Conclusion

Building a wall, increasing detention, and deputizing state and local law enforcement officers to enforce immigration law are consistent with Trump’s campaign promises. But they could very well backfire in the form of wasted taxpayers’ money, squandering of limited resources, unbearable pressure on the already backlogged immigration court system, and reduced cooperation between immigrant communities and their state and local law enforcement entities.

For information on Trump’s other executive orders on immigration, read:

Effects & Impact of Trump’s Executive Order on Enhancing Public Safety in the Interior of the United States

Effects & Impact of Trump’s Executive Order on Protecting the Nation from Foreign Terrorist Entry Into the United States

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Photo by: Clive Darra

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