Breaking News 09.29.2017

President Trump’s “Travel Ban 3.0”: What We Know So Far

On Sunday evening, President Trump issued a proclamation modifying the visa issuance and travel restrictions set forth in Executive Order (EO) 13780 (the second “Travel Ban”). This new proclamation (nicknamed in the media “Travel Ban 3.0”), changes its list of affected countries by removing Sudan, adding Chad, Venezuela, and North Korea, and updating in some cases the affected categories of nationals from the other five previously targeted countries (Syria, Libya, Iran, Somalia, and Yemen).

No Ban:

  • Chad: Suspends entry of all immigrants. Suspends entry of non-immigrant visas only under B-1/B-2 (visitors for business or tourism).
  • North Korea: Suspends entry of all immigrants and non-immigrants.
  • Venezuela: Suspends the entry of certain government officials and their family members on business or tourist visas (B-1/B-2).

Full Ban on Travel Remains:

  • Syria: Suspends entry of all immigrants and non-immigrants.

Amended Travel Ban:

  • Iran: Suspends entry of all immigrants. Suspends entry of all non-immigrants except F (student), M (vocational student) and J (exchange visitor) visas, though they will be subject to enhanced screening.
  • Libya: Suspends entry of all immigrants. Suspends entry of non-immigrant visas only under B-1/B-2 (visitors for business or tourism).
  • Somalia: Suspends the entry of all immigrants. No suspension of non-immigrants but requires enhanced screening of all non-immigrants.
  • Yemen: Suspends entry of all immigrants. Suspends entry of non-immigrant visas only under B-1/B-2 (visitors for business or tourism).

Effective Date and Duration . Due to prior federal court decisions on the first two Travel Bans, these new restrictions are effective immediately for nationals of Iran, Libya, Somalia, Syria, and Yemen who do not have a bona fide relationship to a U.S. person or entity. Barring another federal court order, the new restrictions will take effect on October 18, 2017 for all other persons subject to the proclamation, including nationals of Iran, Libya, Syria, Yemen, and Somalia who do have a bona fide relationship with a U.S. person or entity, as well as nationals of Chad, North Korea, and Venezuela. Unlike prior EOs, this travel ban has no set expiration date. However, these designations will be re-evaluated every 180 days based on the recommendation of the Secretary of the Department of Homeland Security.

Exceptions. Keep in mind, the travel restrictions in the proclamation do not apply to:

  • lawful permanent residents (LPRs) of the U.S.;
  • foreign nationals who are admitted to or paroled into the U.S. on or after the applicable effective date;
  • foreign nationals who have a document other than a visa (e.g., transportation letter, boarding foil, advance parole document) valid on the applicable effective date or issued on any date thereafter;
  • Dual nationals of a designated country who are traveling on a passport issued by a non-designated country;
  • Foreign nationals traveling on diplomatic visas, NATO visas, C-2/U.N. visas, or G-1, G- 2, G-3, or G-4 visa; or
  • Foreign nationals who have been granted asylum in the U.S.; refugees who have been admitted to the U.S.; or individuals who have been granted withholding of removal, advance parole, or protection under the Convention Against Torture.

Waivers. A waiver may be granted to an affected foreign national if they can demonstrate to the consular officer’s or CBP official’s satisfaction that:

(a) Denying entry would cause the foreign national undue hardship;

(b) Entry would not pose a threat to the national security or public safety of the U.S.; and

(c) Entry would be in the national interest.

The Department of State has not yet issued guidance on procedures for applying for a waiver, but the President’s proclamation does establish that any waiver issued by a consular official would be valid both for the issuance of the visa and any subsequent entry on that visa. The proclamation indicates that a waiver may be appropriate, on a case-by-case basis, in the following instances:

  • The foreign national has previously been admitted to the U.S. for a continuous period of work, study, or other long-term activity, is outside the U.S. on the applicable effective date, seeks to reenter the U.S. to resume that activity, and the denial of reentry would impair that activity;
  • The foreign national has previously established significant contacts with the U.S. but is outside the U.S. on the applicable effective date for work, study, or other lawful activity;
  • The foreign national seeks to enter the U.S. for significant business or professional obligations and the denial of entry would impair those obligations;
  • The foreign national seeks to enter the U.S. to visit or reside with a close family member (e.g., a spouse, child, or parent) who is a U.S. citizen (USC), LPR or lawful nonimmigrant, and the denial of entry would cause undue hardship;
  • The foreign national is an infant, a young child or adoptee, an individual needing urgent medical care, or someone whose entry is otherwise justified by special circumstances;
  • The foreign national can document that he or she has provided faithful and valuable service to the U.S. Government;
  • The foreign national is traveling for purposes related to an international organization designated under the International Organizations Immunities Act (IOIA), traveling for purposes of conducting meetings or business with the U.S. Government, or traveling to conduct business on behalf of an international organization not designated under the IOIA;
  • The foreign national is a Canadian permanent resident who applies for a visa at a location within Canada;
  • The foreign national is traveling as a U.S. Government-sponsored exchange visitor; or
  • The foreign national is traveling to the U.S. at the request of a U.S. Government department or agency, for legitimate law enforcement, foreign policy, or national security purposes.

We will provide further updates on the Travel Ban 3.0 and the waiver application process as they become available.

Premium Processing to Resume for ALL H-1B Petitions by October 3

On September 27, 2017, USCIS Service Center Operations indicated that it is on track to resume premium processing for all H-1B petitions on or before October 3, 2017. However, USCIS has not yet made an official announcement. We will provide updates as they become available .

Reminder: File Your DACA Renewal BEFORE October 5

Within the last week, USCIS confirmed that only persons whose current DACA expires between September 5, 2017 and March 5, 2018 are eligible to renew their deferred action grant. For eligible individuals, DACA renewal requests and associated applications for employment authorization must be properly filed and physically received by USICS at the proper filing location no later than the October 5, 2017 deadline.

Best Practices for Managing Social Media in Response to DHS Information Collection

As has been widely reported in the media, the Department of Homeland Security has moved to collect social media information such as “social media handles and aliases, associated identifiable information and search results” for all visitors and immigrants, potentially including permanent residents and naturalized U.S. citizens. The new rule was published in the Federal Register, and looks to go into effect on October 18, 2017 following a public comment period. The move follows the Trump Administration’s May approval of a new questionnaire for visa applicants that requests social media handles for the past five years, as well as biographical information going back 15 years.

USCIS, CBP, and consular officials have been collecting such information informally for several years, particularly at Ports of Entry, immigration interviews, and during the visa application process at Consulates and Embassies abroad. However, this move appears to be a new, systematic process with a very broad reach and potential to effect anyone in the U.S. who has any relationship to an immigrant, including attorneys and the physicians who conduct immigration medical exams. The scope will likely raise legal challenges in federal and constitutional law, under the First, Fourth, and Fourteenth Amendments, as well as concerns of overbroadness.

Notably, this policy would not allow officials to request social media content not available to the public, absent a warrant to the hosting company, unless the subscriber has consented to disclosure when signing up for the service.

It is advisable for all foreign nationals to evaluate their public-facing social media content and display settings, and not to put anything on social media that would imply or indicate that (1) they are breaking or advocating breaking either state or federal law (such as scenes of pot smoking, underage drinking, advocating specific acts of violence, etc.); (2) they might support in any way any group that the Department of State has labelled a terrorist organization (including just a “like” on the organization’s page); or (3) any information that conflicts with details provided in a visa application or indicates an action or planned action that would be in conflict with their immigration status (or future status if still outside the U.S.) such as working without authorization, engagement/marriage to a U.S. citizen, etc.

Who’s Who Legal Again Recognizes Founding Partner David Ware

For the eleventh year in a row, Ware|Immigration’s own founding partner David Ware has been named by the prestigious Who’s Who Legal as one of the foremost practitioners in the world of Corporate Immigration Law, among a select group in the U.S. of only about 300 attorneys. Since 1996 Who’s Who Legal has identified the foremost legal practitioners in business law based upon comprehensive, independent research. It is impossible to buy entry into this publication. From all of us at Ware|Immigration, congratulations to David on this well-earned recognition of your years of hard work, professionalism, and dedication to being the best at serving our clients!

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