Category Archives: immigration reform

Immigration Reform Update and I-601 Waiver for 3/10-Year Unlawful Presence Bar

The Biden Administration’s U.S. Citizenship Act of 2021 calls for comprehensive immigration reform. One provision seeks to get rid of the 3/10-year unlawful presence bar. 

This would be a major departure from current law, which requires a special waiver for this inadmissibility ground. Immigrant visa applicants who have this bar must first receive an I-601 or I-601A waiver for the visa to be issued.  Nonimmigrant visa applicants with this bar need a 212(d)(3) waiver to be granted a visa. 

To hear more, click HERE for Episode 7 on The Legal Immigrant podcast or find it on Apple Podcasts.

In this episode, I focus on the immigrant waiver for the unlawful presence bar. I discuss the key differences between the I-601 and I-601A waiver, the qualifying relative and extreme hardship requirements, and the factors that USCIS considers in deciding whether to approve or deny the application. 

For more information on the unlawful presence waiver, see:

Whether any immigration reform or changes in the law will eliminate the unlawful presence bar is uncertain. In the meantime, the 3/10-year bar due to accrual of unlawful presence lasting more than 180 days – prior to departing the U.S. – continues to exist. 

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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 your situation. The sharing or receipt of this information does not create an attorney-client relationship.

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Biden Administration Proposes Immigration Bill to U.S. Congress: The U.S. Citizenship Act of 2021

On January 20th (day 1 of the Biden Administration), the White House announced it is sending a bill to Congress to reform major parts of the U.S. immigration system.

It includes an earned roadmap for certain undocumented immigrants, Dreamers, TPS holders, and immigrant farmworkers to apply for green cards and, eventually, U.S. citizenship. 

Other proposed changes include reducing the backlog in family-based and employment-based immigration; recapturing unused visas; allowing intended immigrants with approved family petitions to join relatives in the U.S. on a temporary basis while they wait for green cards to become available;  and eliminating the 3/10-year unlawful presence bars to re-entry. 

The bill authorizes additional funding to deploy new screening technology at U.S. ports of entry and to address the root causes of migration in the Central American region.

As of the date of this blog post, the bill has not been formally introduced in either the House or the Senate. It will NOT become law unless passed by Congress and signed by the President. 

To hear more about the proposed bill, click HERE for Episode 6 on The Legal Immigrant podcast. And if you want to encourage others to listen to the show, please post a 5-star rating and positive review on Apple Podcasts or other app!

Resource cited:

See also:

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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 your situation. Each case is unique and even cases that seem similar may have different outcomes. The sharing or receipt of this information does not create an attorney-client relationship.

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Trump’s Four Pillars for Immigration Reform

In his State of the Union address on January 30, 2018, after completing his first year in office, President Trump officially introduced his Administration’s four pillars for immigration reform.

The first pillar “offers a path to citizenship for 1.8 million illegal immigrants who were brought [to the United States] by their parents at a young age…”  Commonly known as Dreamers, individuals within this group who meet education and work requirements, and show good moral character, will be eligible for naturalization (U.S. citizenship), according to Trump.

The second pillar aims to enhance border security. It involves building a big wall on the U.S.-Mexico border and hiring more border patrol officers. “Crucially, our plan closes the terrible loopholes exploited by criminals and terrorists to enter our country — and it finally ends the dangerous practice of ‘catch and release’,” Trump said.

The third pillar ends the Diversity Visa Lottery, which Trump criticized as “a program that randomly hands out green cards without any regard for skill, merit, or the safety of our people.” He further called for a “merit-based immigration system.”

The fourth pillar “protects the nuclear family by ending chain migration” and restricting family-based immigration to only spouses and minor children. Trump claimed that under the current system, “a single immigrant can bring in virtually unlimited numbers of distant relatives.”

Trump deems the Diversity Visa Lottery program and “chain migration” as sources of terrorist attacks and threats to the national security of the United States.

While Trump has said Congress should pass a “bill of love” for young, undocumented immigrants who qualified for the Obama Administration’s Deferred Action for Childhood Arrivals (DACA) program, which he rescinded on September 5, 2017, his support does not come without conditions.

Conditioning protections for Dreamers and DACA holders on federal funding for a Southern border wall and  reductions in legal immigration, in particular, makes it harder for a gridlocked Congress to reach a mutually agreeable, workable solution. Congress’ failure on February 15 to secure enough votes to advance any of the four immigration bills up for a vote is a prime example. To learn more, read White House-Backed Bill Proposing Protections for Dreamers/DACA Holders, Restrictions on Family-Based Immigration, and End to Diversity Visa Lottery Fails to Pass in the Senate; Worries Prevail.

In the meantime, the Trump Administration has relied on presidential proclamations and executive policies to bypass Congress and impose travel restrictions and broaden immigration enforcement priorities. While the termination of prior, executive orders and the introduction of new ones are subject to checks and balances, including review by U.S. federal courts and the U.S. Supreme Court, they still have ripple effects.

Section 212(f) of the Immigration and Nationality Act (INA) gives the President broad authority to suspend entry of a class of foreign nationals temporarily if he or determines the entry of such aliens would be detrimental to the U.S. interest.

Trump’s Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats (Proclamation 9645) – dubbed “Travel Ban 3.0” – indefinitely suspends entry to the United States for nationals of eight countries (Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen, Somalia).

There are a few exceptions, such as lawful permanent residents, asylees, and diplomatic visa holders from these countries. Consular officers and immigration officials may also grant case-by-case waivers to those who would otherwise be subject to the entry ban, if denial of their admission would cause them undue hardship and their admission would not pose a threat to the national security of public safety of the United States and would be in the national interest.

Federal courts in Hawaii and Maryland issued preliminary injunctions partially blocking Travel Ban 3.0, but they were lifted by the U.S. Supreme Court on December 4, 2017, allowing Trump’s proclamation to go into effect. The U.S. Supreme Court is expected to hear oral argument on April 25 regarding whether the ban violates U.S. immigration law or the U.S. Constitution.

Trump’s termination of the DACA program has spurred federal lawsuits, which resulted in February 13th New York and January 9th San Francisco court orders, issuing temporary injunctions to block the Administration’s rescission. As a result, U.S. Citizenship & Immigration Services (USCIS) — which recently changed its mission statement to remove the term “nation of immigrants” and emphasize “protecting Americans” — continues to accept DACA renewal requests for now.

The Administration’s expansion of immigration enforcement priorities has also made certain, undocumented immigrants increasingly vulnerable at their USCIS interviews. Spouses of U.S. citizens are now more likely to be apprehended by U.S. Immigration & Customs Enforcement (ICE) at in-person interviews with USCIS, when they seek an approval of a marriage-based petition to legalize their status, but have already been issued a removal order, been previously caught unlawfully entering the United States, have criminal convictions, etc.

In light of the Administration’s immigration policies, it has become more critical to have experienced, attentive immigration counsel evaluate your eligibility for immigration benefits (preferably before you file for them) and accompany you to in-person interviews with USCIS. For more information, read 5 Benefits of Having Immigration Counsel at Your In-Person Interview with USCIS.

Contact Dyan Williams Law to help you evaluate your qualifications for permanent residence or naturalization, overcome visa refusals, apply for waivers of inadmissibility, and represent you at green card or citizenship-related interviews with USCIS.

Cheers,

Dyan Williams

Founder & Principal Attorney
Dyan Williams Law PLLC
(612) 225-9900
dw@dyanwilliamslaw.com

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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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White House-Backed Bill Proposing Protections for Dreamers/DACA Holders, Restrictions on Family-Based Immigration, and End to Diversity Visa Lottery Fails to Pass in the Senate; Worries Prevail

Of the four immigration bills that were recently considered by the Senate, three offered a path to citizenship for 1.8 million undocumented immigrants brought to the U.S. when they were children. But the White House’s calls to end “chain migration” by limiting family-based immigration to only spouses and minor children of U.S. citizens (and possibly permanent residents), as well as scrap the Diversity Visa Lottery program, have made it harder for a divided Congress to address the nation’s immigration problems with a legislative fix.

Comprehensive immigration reform remains a divisive issue in Congress, as reflected in the Senate’s failure to advance any of the four immigration bills up for a vote on Thursday, February 15. On immigration, a supermajority of 60 out of 100 senators must agree to end debate and force an up or down vote on a bill. The Chuck Grassley (R-Iowa) immigration bill, which was backed by President Trump and mirrored the White House “four pillars” immigration framework, received the least number of votes to move forward.

Dreamers and DACA Holders in Limbo

There seems to be bipartisan support for protecting “Dreamers” or young undocumented immigrants who qualify for the Deferred Action for Childhood Arrivals (DACA) program, which was introduced by the Obama Administration on June 15, 2007, and rescinded by the Trump Administration on September 5, 2017.

DACA is a temporary immigration relief for undocumented immigrants who came to the U.S. as minors before age 16, lived in the U.S. since June 15, 2007, are currently in school or have graduated from high school, have no serious criminal history, and meet other eligibility requirements.

Although DACA provides authorized stay and work authorization on a temporary basis, it does not provide a path to permanent residence or citizenship in the U.S.

When the Trump Administration announced the ending of DACA, and left it up to gridlocked Congress to address the ramifications, it set an expiration date of March 5, 2018. But with federal courts in New York and San Francisco issuing temporary injunctions on February 13 and January 9, respectively, which block the Administration’s September order rescinding the DACA program, USCIS issued a statement noting it will, for now, continue accepting requests for DACA renewals under pre-existing terms.

The end of DACA does not mean there will be mass deportations of young, undocumented immigrants. The U.S. Department of Homeland Security (DHS) has to issue a Notice to Appear and file it with the Immigration Court to initiate removal proceedings against an applicant, who may seek available relief  (e.g. asylum, cancellation of removal) from the Immigration Judge. The DHS may also set enforcement priorities so that Dreamers or DACA holders are low priorities for removal.

White House Calls for Limits on Family-Based Immigration and an End to Diversity Visa Lottery Program

In his first State of the Union address before a joint session of Congress on January 30, Trump expressed concerns with family-based immigration, which he referred to as “chain migration.”  He claimed, “under the current broken system, a single immigrant can bring in virtually unlimited numbers of distant relatives.”

He stated his immigration plan “protects the nuclear family by ending chain migration” and would “focus on the immediate family by limiting sponsorships to spouses and minor children.”

Trump also called for an end to the Diversity Visa Lottery, which he said is “a program that randomly hands out green cards without any regard for skill, merit or the safety of our people.” He previously noted in a December 15, 2017 speech, “they give us their worst people, they put them in a bin,” and “the worst of the worst” are selected in the Diversity Lottery.

Using anecdotal cases, the President has linked family-based immigration and the Diversity Visa Lottery program to terrorist attacks and threats to the national security of the United States.

In a December 11, 2017 statement, Attorney General Jeff Sessions wrote, “The President is exactly correct about the changes we need to our immigration system. We have now seen two terrorist attacks in New York City in less than two months that were carried out by people who came here as the result of our failed immigration policies that do not serve the national interest —the diversity lottery and chain migration.”

Of the two examples, the first is Sayfullo Saipov, from Uzbekistan, who entered the United States in 2010 on a diversity immigrant visa. Saipov is accused of killing eight people and injuring a dozen others when he drove a rented truck through a Manhattan, New York City bike lane in October 2017.

The second example is Akayed Ullah, a permanent resident from Bangladesh, who is suspected of carrying out a terrorist attack in New York City in December 2017. Ullah is accused of attempting to bomb a subway station with a low-tech explosive device, but only he was injured when the device failed. He came to the United States in 2011 as the minor child of a parent who was petitioned by an adult U.S. citizen sibling (in fourth preference, family sponsored category).

Family-Based Immigration, As It Stands

U.S. citizens and lawful permanent residents/green card holders may sponsor only certain relatives for immigrant visas. Except for the immediate relative category (spouses and minor children of U.S. citizens, and parents of adult U.S. citizens), there is a limited number of visas available and lengthy waiting lists (some lasting more than a decade) in family-based, preference categories.

The preference categories include unmarried sons and daughter of U.S. citizens and their minor children (if any);  spouses, minor children, and unmarried sons and daughters 21 or older of permanent residents; married sons and daughters of U.S. citizens and their spouses and minor children (if any); and siblings of adult U.S. citizens and their spouses and minor children (if any).

The beneficiary (immigrant visa/green card applicant) also must not be inadmissible to the United States based on likelihood of becoming a public charge, certain criminal offenses, immigration violations, or other grounds defined by statutory law.

For more information on the existing family-based immigration system, read Immigrant Visa Process: Delays and Setbacks; Changes to the Visa Bulletin: Understanding the Two Filing Charts; and Priority Date Recapture and Retention in Family-Based Immigration.

Current Diversity Visa Lottery Program

Contrary to Trump’s claims, countries do not choose which of their citizens to put in the Diversity Visa Lottery.  Rather, the program issues up to 50,000 diversity visas each year to qualified applicants from U.S.-designated countries with low rates of immigration to enter the U.S. as permanent residents – if they win the DV lottery and successfully complete the immigrant visa or green card process.

To be eligible, applicants must be born in an eligible country. Natives of countries with relatively high rates of immigration – such as Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam – do not qualify.

Applicants must also have at least a high school education or its equivalent (successful completion of a 12-year course of formal elementary and secondary education); or two years of work experience within the past five years in an occupation requiring at least two years of training or experience to perform the job.

After being selected in the lottery, applicants must clear a background check and demonstrate they have no health problems, criminal records, national security concerns, or other inadmissibility grounds barring them from the United States.

For more information on the current Diversity Lottery program, read Diversity Immigrant Visa – November Entry Deadline (Plus Other Things to Consider.

White House “Four Pillars” Immigration Framework and Its Influence on Congress

In some respects, the White House’s immigration framework takes a harder line on legal immigration than on young, undocumented immigrants – many of whom came to the United States as children without proper travel authorization or lawful admission.

Immigration Bills in the Senate

On Wednesday, February 14,  before the Senate voted on the four immigration bills, Trump issued a statement calling on Congress to support the Grassley proposal. He wrote, “The Grassley bill accomplishes the four pillars of the White House Framework: a lasting solution on DACA, ending chain migration, cancelling the visa lottery, and securing the border through building the wall and closing legal loopholes.”  He also asked all senators to oppose any legislation that fails to fulfill these four pillars.

Each bill needed at least 60 votes to advance in the Senate. The four proposals included:

Sen. Chris Coons (D-DE) and John McCain (R-AZ) Bill: provided path to citizenship for 1.8 million undocumented immigrants who came to the country as children; included no funding for Trump’s border wall, but did include measures to improve border security.

Failed 52 to 47. Democrats were almost united in favor and Republicans mostly voted against it.

Sen. Pat Toomey (R-PA) Bill: withheld federal funding for municipalities (dubbed “sanctuary cities”) that refuse to enforce federal immigration policy through their local police officers and other state law enforcement agencies.

Failed 54 to 45. Republicans and a few Democrats backed it, but most Democrats voted against it.

Sen. Susan Collins  (R-ME), endorsed by Minority Leader Chuck Shumer (D-NY), Bill: provided path to citizenship for 1.8 million undocumented immigrants who came to the country as children; included $25 billion in funding for border security; prevented DACA recipients from sponsoring parents for legal status.

Failed 54 to 45. Democrats almost unanimously supported it, along with eight Republicans.

Sen. Charles Grassley (R-IA), based on proposal backed by White House, Bill: provided path for 1.8 million undocumented immigrants who came to the country as children; included $25 billion in funding for border wall; severely restricted legal immigration by limiting family-based immigration to spouses and minor children of U.S. citizens and ending diversity visa lottery program.

Failed 39 to 60. Democrats opposed the bill en masse, joined by a notable number of Republicans, while most of the GOP conference and a couple Democrats supported it.

Immigration Bill in the House

Immigration reform will be even harder for the more conservative House to tackle. Republican leaders are scrambling for sufficient votes on an immigration proposal in the House that is more restrictive than the Trump-backed Grassley bill in the Senate.

The immigration bill by House Judiciary Committee Chairman Bob Goodlatte (R-Va.) and Homeland Security Committee Chairman Michael McCaul (R-Texas) offers a temporary, renewable legal status — rather than a path citizenship — to DACA holders in exchange for funding Trump’s border wall, cracking down on so-called sanctuary cities, requiring U.S. employers to use the E-Verify system to check the immigration status of job applicants, restricting family-based immigration, and scrapping the diversity visa lottery program.

Although Trump has expressed support for this bill, it is expected to meet its demise in the divided Senate, even if it passes through the House.

Worries Prevail With No Clear Path to Immigration Reform

If limiting family-based immigration and ending the Diversity Visa Lottery program are non-negotiable components of a White House-backed immigration plan, Congress faces steep obstacles in creating a legislative solution for Dreamers or DACA holders.

Worries prevail as the immigration fate of Dreamers and DACA holders hang in the balance, and some family-based immigration and the diversity visa lottery program are potentially on the chopping block.

In the meantime, eligible DACA holders may file renewal applications according to the latest USCIS policy, while federal court litigation ensues. U.S. citizens and permanent residents may also continue to file family-based petitions for certain relatives, and applicants from eligible countries may seek diversity immigrant visas under existing programs. Any change to U.S. immigration law is expected to apply prospectively and have no retroactive effect.

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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: PIRO4D

 

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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Photo by: Dimitry