Urgent Travel and Immigration Warnings

Last Updated February 20, 2017

On February 16, 2017 President Trump stated that he will be issuing a new Executive Order to replace the January 27, 2017 order that has been halted by the 9th Circuit.  This new order could be issued as early as this week.  The President also asked the District Court in California to suspend any additional legal actions on the existing order until the new one is in place. This request signals that the existing order will be withdrawn and replaced with a new one.

The most likely revisions to the existing order would be a specific statement that green card holders and those who already have visas are not included in the ban.  There have been news reports that the coverage of the new executive order may include more countries and  more onerous vetting procedures.  Until the new order is issued, I am continuing to issue the following travel and immigration warnings:

Updated Advisories: 

Travel for those from Iraq, Iran,  Libya, Syria, Yemen, Sudan, and Somalia: 

Anyone outside the U.S. holding a U.S. visa who has any future intention of entering or returning to the United States in the next 6 months, should make all attempts to travel to the United States now. The legal procedures challenging the ban have just begun, and there is no way to predict how long the current stay will remain in place. For those in the United States, considering any kind of foreign travel, it should be undertaken with extreme caution and the shortest duration possible. As described above, the legal process is very unpredictable and the situation could change in unexpected ways at any time.

USCIS Application Processing for those from Iraq, Iran,  Libya, Syria, Yemen, Sudan, and Somalia:

File all eligible applications now: USCIS is currently adjudicating all applications for nationals from the affected countries. It is also accepting new applications for change of status, adjustment of status, I-140 petitions, and all other applications. It is advised that any and all applications that can be filed for these individuals be filed now. Due to the uncertain nature of the outcome of the pending litigation as well as a history of unannounced and abrupt changes in policy, individuals should take advantage of the current situation as much as possible.

Consider Filing Protective I-539 Applications: Those who are on statuses that may be expiring in the next 6 months, and who have not set plans as to their future employment or status, should consider filing change of status applications (I-539) to request Visitor Visa status (B-2) to begin at the conclusion of their current status. Filing of this application will maintain their legal status in the United States, throughout the duration of the pendency of that application. This may help protect their legal status, if there is a protracted legal battle and/or USCIS reinstates the prior policy of NOT adjudicating any applications of those from the seven countries.

Foreign Travel for all other foreign nationals with valid visas

Undertake all foreign travel with extreme caution. Check visa expiration dates, passport expiration dates and have all backup documentation available, such as job letters, pay stubs, I-797 approval notices and other immigration documents such as I-20s for Students. It is possible that other Executive Orders could be issued while you are abroad that may affect your ability to return to the United States. Confer with immigration counsel, family and your employer for any updated policies, advisories and other travel warnings before planning additional foreign travel.

Foreign Travel for those traveling on Advance Parole

Undertake all Advance Parole travel with extreme caution and limit to only essential travel.  Those traveling on Advance Parole who have accrued more than 180 days of unlawful presence should consider refraining from all foreign travel as they may subject themselves to a 3 year bar to adjustment of status. This could occur if the Trump administration makes changes to current policy.  Advance Parole programs are under attack and could be the subject of future Executive Orders to eliminate Advance Parole for certain categories of applicants or to limit the availability and duration of advance parole. Implementation of any new Executive Orders will be confusing and chaotic and subject to CBP case by case determination, so anyone using Advance Parole documents will be subject to at a minimum additional scrutiny at the time of reentry into the United States.

If available utilize Non-immigrant Visas to travel instead of Advance Parole: Those in H or L status who have valid non-immigrant visas or can get them, may consider traveling on visas rather than Advance Parole. This option will eliminate the possibility that changes made to Advance Parole programs while the foreign national is abroad, will not affect his/her reentry to the United States.

February 5, 2017 Update:

On February 4, 2017 a federal District Court Judge issued a complete stay on implementation of the January 27, 2017 Executive Order described below. The Trump administration filed an emergency appeal with the 9th Circuit Court of Appeals to have the stay lifted. This request was rejected overnight on February 5, 2017.

As a result of this order, all DHS agencies have stopped implementing all restrictions in the Executive Order. Travelers from the 7 affected countries are being allowed to board planes for the U.S. abroad and  CBP officers at all airports are allowing them to enter the U.S.  USCIS has confirmed that it has resumed adjudicating all petitions for immigrant and nonimmigrant visas for persons from the affected countries.

Department of State reversed the revocation of more than 100,000 visas for nationals of the affected countries, allowing travelers to use existing visas for entry to the United States.

Updated Advisories: 

Travel for those from Iraq, Iran,  Libya, Syria, Yemen, Sudan, and Somalia: 

Anyone outside the U.S. holding a U.S. visa who has any future intention of entering or returning to the United States in the next 6 months, should make all attempts to travel to the United States now. The legal procedures challenging the ban have just begun, and there is no way to predict how long the current stay will remain in place. For those in the United States, considering any kind of foreign travel, it should be undertaken with extreme caution and the shortest duration possible. As described above, the legal process is very unpredictable and the situation could change in unexpected ways at any time.

USCIS Application Processing for those from Iraq, Iran,  Libya, Syria, Yemen, Sudan, and Somalia:

File all eligible applications now: USCIS is currently adjudicating all applications for nationals from the affected countries. It is also accepting new applications for change of status, adjustment of status, I-140 petitions, and all other applications. It is advised that any and all applications that can be filed for these individuals be filed now. Due to the uncertain nature of the outcome of the pending litigation as well as a history of unannounced and abrupt changes in policy, individuals should take advantage of the current situation as much as possible.

Consider Filing Protective I-539 Applications: Those who are on statuses that may be expiring in the next 6 months, and who have not set plans as to their future employment or status, should consider filing change of status applications (I-539) to request Visitor Visa status (B-2) to begin at the conclusion of their current status. Filing of this application will maintain their legal status in the United States, throughout the duration of the pendency of that application. This may help protect their legal status, if there is a protracted legal battle and/or USCIS reinstates the prior policy of NOT adjudicating any applications of those from the seven countries.

Foreign Travel for all other foreign nationals with valid visas

Undertake all foreign travel with extreme caution. Check visa expiration dates, passport expiration dates and have all backup documentation available, such as job letters, pay stubs, I-797 approval notices and other immigration documents such as I-20s for Students. It is possible that other Executive Orders could be issued while you are abroad that may affect your ability to return to the United States. Confer with immigration counsel, family and your employer for any updated policies, advisories and other travel warnings before planning additional foreign travel.

Foreign Travel for those traveling on Advance Parole

Undertake all Advance Parole travel with extreme caution and limit to only essential travel.  Those traveling on Advance Parole who have accrued more than 180 days of unlawful presence should consider refraining from all foreign travel as they may subject themselves to a 3 year bar to adjustment of status. This could occur if the Trump administration makes changes to current policy.  Advance Parole programs are under attack and could be the subject of future Executive Orders to eliminate Advance Parole for certain categories of applicants or to limit the availability and duration of advance parole. Implementation of any new Executive Orders will be confusing and chaotic and subject to CBP case by case determination, so anyone using Advance Parole documents will be subject to at a minimum additional scrutiny at the time of reentry into the United States.

If available utilize Non-immigrant Visas to travel instead of Advance Parole: Those in H or L status who have valid non-immigrant visas or can get them, may consider traveling on visas rather than Advance Parole. This option will eliminate the possibility that changes made to Advance Parole programs while the foreign national is abroad, will not affect his/her reentry to the United States.

 

 

January 30, 2017 Update

On January 27, 2017 President Donald Trump signed an Executive Order that has far reaching consequences for all foreign nationals currently in or who will be traveling to the United States. While the 120-day “Refugee Ban” has received worldwide attention, there are also several other provisions which all-foreign nationals, including legal permanent residents should take into consideration when making any travel plans.

Travel Ban for 7 Countries for 90 Days

Nationals and dual Nationals of Syria, Yemen, Sudan, Libya, Somalia, Iran and Iraq are under a complete travel ban for the next 90 days. Currently, airlines worldwide are refusing to board any national or dual national from any of these countries on flights to the United States, including legal permanent residents, all non-immigrant visa holders, and immigrant visa holders who are entering the United States for the first time. Reports in the news on Monday 1/29 are that dual nationals are not affected, but this has not been confirmed by anyone in the  U.S. government.

This ban was put into place without any guidance to the White House by USCIS or by CBP, thus international carriers and CBP officers at the land borders have been making blanket determinations to enforce the order to its broadest interpretation, including forbidding Legal Permanent Residents from returning to the US from trips abroad. Reports have been confusing as to whether Permanent Residents are covered by the ban or not.

Travel Warning: Anyone holding a passport from these 7 countries, who is currently in the United States, should not leave, as you may not be permitted to reenter the United States.

Action Steps: (1) Anyone who is a LPR and eligible for citizenship from these 7 countries, should immediately consult with immigration counsel on your eligibility for US citizenship and prepare your naturalization applications post haste.

(2) Contact both of your Senators and your Representative in the House and tell them that you disagree with this Executive Order, and that it should be lifted immediately. The phone number for the U.S. Capitol switchboard is (202) 224-3121.

Elimination of the Interview Waiver Program for Visa Applicants:  The Executive Order contained an immediate discontinuance of the interview waiver programs, which have been in place and working well in many countries with high volume visa issuance, including India, Brazil and the UK. The interview waiver option has been made available to certain visa applicants who are renewing previously issued visas in the same visa category. To date there has been no guidance has to how this new policy will be implemented. The new Secretary of State has not yet been confirmed and senior leadership at the State Department has been terminated from employment. It may be several weeks before any guidance is published or procedures are implemented to effect this change in policy.

Visa Appointment Warning: Visa processing may see significant delays, and be thrown into disarray and chaos over the next several months while the new policy is implemented and persons who were previously interview waiver eligible, must now be interviewed.

Action Steps: (1) Plan visa processing 30-60 days ahead of anticipated travel (2) do not book airline flights until visas have been issued (3) Advise employers of potential administrative processing delays and delayed start dates for new assignments

Seek Legal Advice before International Travel or any major life decisions: Due to the unprecedented uncertainty and lack of legal guidance, as well as the White House’s willingness to act without consulting USCIS or the State Department, all foreign national regardless of nationality are urged to stay in close touch with immigration counsel for any travel, job change, life change or address change decisions

Advance Parole Benefit in Doubt:  The Executive Order also contained directives to eliminate all uses of Advance Parole that may be considered to “circumvent U.S. immigration laws.” This provision is aimed at the use of Advance Parole by those having Deferred Action for Childhood Arrivals, and other immediate relatives of U.S. citizens who travel on Advance Parole, return as Parolees, thus making them eligible to adjust status. This directive is so vaguely worded, that it gives CBP officers authority to refuse entry on Parole to anyone who any individual CBP officer determines may be using an entry on Parole to “Circumvent U.S. laws. Even employment based adjustment of status applicants who are traveling only on Advance Parole with no back up H-1B or L visa status, may consider avoiding foreign travel until additional guidance is given to CBP officers and the tremors from the Executive Order die down a bit.

Advance Parole Travel Warning: Foreign Nationals taking foreign travel, who will be returning to the United States using Advance Parole documents should refrain from foreign travel at this time.

Significant Changes to Employment Based Immigration Possible:  Multiple immigration proposals are being considered by the House, Senate, White House and Department of Homeland Security. These proposals could affect the following visas, H, L, E, TN, Visa Waiver Program as well as all Permanent Employment Based Categories (EB-1-EB-5). Employers should consider commencing sponsorship applications for all foreign national employees who are eligible. Although not 100% certain, applications filed under current law should continue to be adjudicated under the law in effect at the time they were filed with USCIS and/or the Department of Labor. Employees should consider requesting sponsorship from their employers at this time.

Action Step: Start employment based green card applications now


Encourage and Promote U.S. Citizenship: The only way for any foreign national to be fully insulated from changes in immigration law is to naturalize and become a U.S. citizen. Many countries recognize dual citizenship, so often the foreign national does not have to give up the passport of their birth country when becoming a U.S. citizen. To become a U.S. citizen, a Legal Permanent Resident must meet the following criteria:

  • Have a Green Card for 5 years (3 years if married to a US citizen)
  • Speak, Read and Write English (with several exceptions for those who have had a green card for more than 15 years)
  • Be a person of good moral character (no convictions, DUIs or other infractions during the 5 years preceding the application)
  • Pass a 10 question test with 60% correct on the History and Government of the United States (Must study 100 questions)
  • Have been physically present in the U.S. for 2.5 years of the 5 years preceding the application with no trips outside of the U.S. lasting more than 12 months.

For questions on these travel and immigration warnings or any other immigration topics, please contact Valentine Brown (215) 979-1840 or vbrown@duanemorris.com