Last night, a three-judge panel of the United States Court of Appeals for the Ninth Circuit ruled unanimously that the federal government may not enforce key sections of the “travel ban” Executive Order issued on January 27.

The Ninth Circuit decision leaves in place a restraining order issued by a federal district judge in Washington last Friday, halting enforcement of the most onerous parts of the order nationwide and at all U.S. ports of entry. Specifically, the federal government may not enforce the following sections:

1. Section 3(c) – Barring entry of nationals from Iraq, Libya, Somalia, Sudan, Syria, Yemen, and Iran for at least 90 days
2. Section 5(a) – Suspending all refugee admissions for at least 120 days
3. Section 5(b) – Prioritizing refugee admission for religious minorities upon the resumption of refugee admissions
4. Section 5(c) – Suspending indefinitely refugee admissions from Syria
5. Section 5(e) – Creating a process for “case-by-case” admission of refugees during the suspension periods, with preference given to religious minorities

​As a result of the injunction, travel to the United States for nationals of the seven affected countries has returned to the norm that existed before the order was issued. The U.S. State Department has rescinded the provisional revocation of any temporary and permanent visas issued to affected individuals, and those visas may now be used for travel to the U.S. U.S. consulates also will continue to schedule visa appointments for all applicants, and airlines will not be prevented form boarding travelers with valid immigration documents.

It is important to note that the restraining order prevents enforcement of only the section of the executive order listed above. Other sections remain in force, including the suspension of the Visa Interview Waiver Program, although there are reports of some consulates allowing interview waiver appointments.

It is not clear at this time whether the White House will appeal the Ninth Circuit decision to the U.S. Supreme Court or whether the Court would hear the case. The White House could decide to rescind the original order and issue a new order tailored to avoid the legal challenges that led to the restraining order.

If you have any questions about this, please contact us.

On January 27, the White House issued an Executive Order immediately halting visa issuance and forbidding entry into the U.S. of all nationals of seven predominantly Muslim countries: Iraq, Libya, Somalia, Sudan, Syria, Yemen, and Iran. The order also effectively ends the refugee admission program for Syrians and temporarily halts refugee admissions from other countries, while also reducing the number of refugee admissions to 50,000 in 2017.
 
Signed late Friday afternoon, the order has caused chaos at airports around the world as immigration inspectors have scrambled to implement the order while travelers with valid visas and green cards attempted to board flights or arrived in the U.S. Although the chaos of the first 72 hours is subsiding, many aspects of how the ban is being applied remain in flux.
 
Here is what we know about the travel ban and how it is being implemented:

• The order directs that nationals of the seven countries be banned from receiving visas or entering the U.S. for at least 90 days while the Secretary of Homeland Security reviews and reports on the security screening procedures for visa applicants from the affected countries. This ban affects travelers with both temporary and permanent visas, although DHS and the Department of State may grant waivers on a case-by-case basis.
• Initially, border officials applied the ban to Lawful Permanent Residents (green card holders) although they could be permitted to enter on a “case-by-case” basis. The Secretary of Homeland Security has since determined that Permanent Residents would be granted a blanket waiver “in the national interest,” but they will be subjected to increased scrutiny.
• Border inspectors initially were applying the ban to dual nationals (e.g., those born in Iran, but holding U.K. citizenship). DHS has stated that dual nationals will be treated according to the passport they present. In other words, an Iranian-born U.K. citizen presenting a U.K. passport should be processed as a U.K. citizen and the ban should not apply.
• U.S. citizens enrolled in the Global Entry express travel program who are also nationals of one of the seven affected countries will most likely have their Global Entry registration revoked automatically.
• The order also suspends “other immigration benefits” for people from the affected countries. USCIS has issued guidance to its offices that immigration benefits applications filed by nationals of the affected countries may be processed, but that no final decision may be made while the order is in effect. This means that no benefits applications by affected individuals will be adjudicated at least during the initial 90-day period. DHS has confirmed that N-400 applications for naturalization are not affected.

​Since Friday several Federal courts issued injunctions prohibiting CBP from detaining or deporting people who had been prevented from entering the U.S., and many additional lawsuits challenging the order are being prepared. However, there have been reports of CBP officials illegally ignoring the existing injunctions. Even in places where the injunction is being followed, this protection only applies to travelers who have made it to the U.S.

The order is being applied to prevent people with otherwise valid visas from boarding flights, and the Department of State has instructed consular posts worldwide not to schedule visa appointments for people from the affected countries. We also have heard numerous reports from colleagues around the country that some CBP offices and ports of entry are not following the official guidance, including detaining citizens of countries other than the named seven.
 
Our advice is that visa holders who were born in these countries who are currently in the U.S. should not leave the U.S. for any reason unless doing so would result in them overstaying their lawful period of admission. The frenzied process by which the White House seems to be implementing these policies makes it impossible to predict when or whether such visa holders will be permitted to return.
 
The order also suspends refugee admissions from Syria indefinitely and from all other countries for at least 120 days while the oft-discussed “extreme vetting” measures are developed and implemented.
 
Although the order states that the travel ban and refugee suspension is only temporary, it may be unlikely that the countries affected could or would ever comply with the conditions the order sets for having the ban lifted. It is likely that the legality of the order – and the fate of those affected – will ultimately be decided by the Supreme Court.

If you have any questions about this, please contact us.

The right business can be a pathway to living and working in the United States. The Obama administration has proposed new rules to create more opportunities for foreign entrepreneurs to launch and grow businesses in the U.S.
 
Steel, Doebley & Glassman, together with the law firm Spadea Lignana, is hosting a FREE business immigration seminar at the International House Philadelphia in the heart of University City on Wednesday, November 2, 2016, from 7:00 to 9:00 p.m.  Attendees will learn about the newly proposed international entrepreneur parole rule and other immigration opportunities for entrepreneurs and investors, as well as options for opening your own business and determining the best business model for you.

In a recent meeting with the American Immigration Lawyers Association (AILA), the U.S. State Department (DOS) announced that it will more closely scrutinize and monitor visa applicants and visa holders who have been arrested for driving under the influence (DUI).

Consular officers have long been authorized to refer visa applicants with DUI arrests to panel physicians for further evaluation before issuing a visa, and DOS has indicated that this will happen more frequently. More significantly, DOS also stated that consular officers will revoke the visas of individuals arrested for DUI post-visa issuance.

Both DOS and U.S. Citizenship and Immigration Services (USCIS) consider DUI arrests and similar arrests, such as driving while intoxicated (DWI), to be evidence of a potential physical or mental disorder that could make the applicant inadmissible to the U.S. An applicant with a diagnosed “alcohol use disorder” is inadmissible to the U.S. if there is also current associated harmful behavior or past associated harmful behavior that is likely to recur. The agencies consider operating a motor vehicle while intoxicated to be “associated harmful behavior” for this purpose.

Finally, it important to note that this additional scrutiny will apply to arrests for DUI and “related offenses;” this potential ineligibility does not require a conviction.

If you have any questions about these changes and their potential impact on your ability to travel to the U.S., please contact us.

USCIS has announced that as of May 2, 2016, it has completed all data entry for H-1B cap petitions selected in the “lottery” for consideration in the FY2017 cap. We expect that all receipt notices for selected petitions will be received within the next seven to 10 days. USCIS also will now return all petitions that were not selected, a process that will take several weeks.

​Although no new H-1B hires may be made, employers may be able to take advantage of other visa categories, as follows:

• B-1 - The B-1 category allows a foreign national to enter the United States to participate in business activities on behalf of a foreign employer.  Generally, a person in B-1 status may not engage in productive employment in the United States.  Allowable B-1 activities include consulting/meeting with business associates, attending a professional conference, participating in training, or negotiating contracts.  The “B-1 in lieu of H-1” might be used where the foreign national would qualify for H-1B status, but their employer is not based in the U.S. and they are coming to the U.S. for a short period of time.  This type of B-1 status does permit productive work in the U.S., but the person must be employed by and continue to be paid by the overseas employer.
• E-3 - The E-3 category is limited to nationals of Australia and is capped at 10,500 per fiscal year, although that quota has never been filled.  The substantive requirements of the E-3 are very similar to H-1B category.  There must be an offer of employment in a “specialty occupation” and the individual must possess a bachelor’s degree or the equivalent in a field related to the employment.
• TN - The North American Free Trade Agreement (NAFTA) between the U.S., Canada, and Mexico allows for simplified immigration travel between and among the three countries.  For purposes of employment in the U.S., citizens of Canada and Mexico who are coming to the U.S. to work in certain professions may be eligible to enter in TN status.  To qualify for TN status, the foreign national must be a citizen of Canada or Mexico, must have a prearranged offer of employment in the U.S., and must meet the educational/experience qualifications for the occupation, which are also specifically set forth in the NAFTA regulations.  In addition, NAFTA limits TN status to individuals working in one of a specifically enumerated list of occupations.
• E-1 / E-2 - The E-1/E-2 categories require that the person be a national of a country with which the U.S. has an appropriate treaty of commerce and that the prospective employer is majority owned by nationals of that same treaty country or by corporate entities having the “nationality” of the treaty country.  These owners/corporate entities must either have made a “substantial” investment in the U.S. or there must be “substantial” trade between the U.S. and the treaty country.  In addition, the offered position must be executive or supervisory, or involve “essential skills.”
• F-1 - The F-1 student visa category permits employment under various circumstances, most commonly through Curricular Practical Training (CPT) or Optional Practical Training (OPT). There is a 12-month limit on OPT unless the person has a designated STEM (Science, Technology, Engineering, or Mathematics) degree and the employer participates in the e-Verify employment verification program, in which case an additional 29 months of post-graduation OPT is available.
• L-1 - The L-1 visa category allows U.S. employers to transfer employees of related overseas entities to work temporarily in the U.S.  The U.S. and foreign entities must have a corporate relationship sufficient to support L-1 status, the employee to be transferred must have worked for the related employer overseas for at least one year, and the offered position must be managerial/executive or must involve “specialized knowledge.”
• O-1 - The O-1 category is available for persons of extraordinary ability who can document sustained national or international acclaim in their field.

Finally, there are various visa categories available for training that might be useful in certain circumstances.

As always, please contact us with any questions.

This is a guest post by our friend Avi Gomberg of Gomberg Dalfen S.E.N.C., a law firm specializing exclusively in Canadian immigration law. For additional information, contact the team at Gomberg Dalfen here.

​Effective March 15, 2016, certain international travelers will need an entry document called an Electronic Travel Authorization (eTA) to travel by air to Canada. This applies to visa-exempt foreign nationals, in other words, non-Canadians who are not required to have a visa to enter Canada. The requirement only applies to those traveling by air, not those traveling by land or sea. It does not apply to citizens of the United States (those with U.S. residency (Green Cards) will require an eTA). Thus, if you require a visa to enter Canada or you are a U.S. citizen, you will not require an eTA. 
 
What is the purpose of the eTA?
 
The implementation of the eTA program is a result of the Canada-United States Perimeter Security and Economic Competitiveness Action Plan. In essence, the eTA is a security measure that allows the Canadian authorities to screen foreign travellers before they arrive in order to ensure that they are not inadmissible to Canada. In the absence of such a pre-screening measure, visa-exempt foreign nationals are not systematically screened for admissibility until they arrive at a Canadian port of entry. The eTA will allow the Canadian authorities to lessen the expense and delay to travellers, airlines and the Canadian government caused by the significant volume of travellers being deemed inadmissible when arriving at Canadian ports of entry. Reasons for inadmissibility include membership in terrorist groups, participation in war crimes or crimes against humanity, membership in organized crime groups, criminality, or public health risks. The United States has already implemented a similar travel authorization program. Travellers will need to show the eTA before boarding a flight to Canada, or they will not be permitted to fly to Canada.
 
It is important to note that the requirement to obtain an eTA does not dispense with any other authorizations or requirements applicable to the traveler such as work permits or study permits. In addition, the traveler remains subject to examination by the Canada Border Services Agency upon arrival in Canada.
 
Who will need an eTA?

Citizens of the following countries will need an eTA to travel to Canada by air as of March 15, 2016: Andorra; Antigua and Barbuda; Australia; Austria; Bahamas; Barbados; Belgium; British citizens*; Brunei; Chile; Croatia; Cyprus; Czech Republic; Denmark; Estonia; Finland; France; Germany; Greece; Hong Kong*; Hungary; Iceland; Ireland; Israel*; Italy; Japan; Republic of Korea; Latvia; Liechtenstein; Lithuania; Luxembourg; Malta; Monaco; Netherlands; New Zealand; Norway; Papua New Guinea; Poland; Portugal; Samoa; San Marino; Singapore; Slovakia; Slovenia; Solomon Islands; Spain; Sweden; Switzerland; Taiwan* and Vatican City (Holy See).* It is best to always consult the Canadian government’s website for the most current list.

* Please note that certain citizens of these countries do require Visas to travel to Canada and hence would not need an eTA

Certain individuals are exempt from the eTA requirement.  This group includes individuals who hold a valid Canadian temporary resident visa, members of the British Royal Family, and certain foreign nationals seeking only to transit through Canada as a passenger on a flight stopping in Canada for the purpose of refueling, among others.
 
How to get an eTA?
 
Applicants can access the eTA application online at www.canada.ca/eTA. Applicants will have to provide passport details, basic personal information, responses to background questions and contact information. The online application process also allows the applicant to indicate whether there are any additional details pertinent to the application, where applicants can indicate any urgent need to travel to Canada, if applicable.   No documents are required for the eTA application. The Canadian authorities may request additional documents later, to be submitted manually. Once the application is submitted, the applicant will receive an automated email confirming receipt and containing an application number and a link by which the applicant can check the status of the application. The cost is CAD$7.00. Applicants who are unable to submit the application electronically because of a physical or mental disability may do so by other means, including a paper form of application.
 
The eTA itself is an electronic document. There is no paper evidence or counterfoil provided to the applicant upon approval. Air carriers have access to the Canada Border Security Agency’s database to confirm the presence of an eTA prior to boarding the aircraft. Before a boarding pass is issued, the air carrier must receive an “ok to board” message from the CBSA database.
 
How long will it take to process an eTA?
 
Most eTA applications are approved within minutes of applying. However, some requests may need more time to process. If this is the case for an application, one can expect an email from Citizenship and Immigration Canada within 72 hours that tells you what the next steps are.
 
How long is the eTA valid?
 
The eTA is linked to the applicant’s passport. It is valid for five years or until the passport expires, whichever occurs first. The same passport used to obtain the eTA must be used for travel with the eTA.

Gomberg Dalfen S.E.N.C. provides this newsletter as a service to its clients and colleagues, to provide updates on changes in Canadian immigration law. The information contained in this newsletter is not intended as legal advice, and persons receiving this information should not act on it without consulting professional legal counsel.

UPDATE -- The State Department has announced that as of June 26, all visa issuing posts are back online and are able to issue visas normally.  The department expect to have the existing backlog of pending visa cases cleared before the July 4 Independence Day holiday.

Following up on our earlier post regarding the ongoing “visa freeze” caused by technical problems with the Department of State’s Consular Consolidated Database (CCD), we attended a meeting today with State Department officials who provided updated information.

As background, a hardware failure has prevented consular posts from receiving biometrics and other security clearances required for visa issuance since June 9, and posts worldwide are currently unable to issue visas for travel to the U.S. In today’s meeting, State Department officials stated that they hope to have the system at least partially operational at some point next week (June 22 – June 26).

Officials also confirmed that once the system is operating again, posts will prioritize applications as they work through the backlog. Priority will be given to emergency humanitarian cases, H-2A applications based on current agricultural needs, and F-1 students and J-1 exchange visitors who have impending program start dates.

Department officials reiterated that those with a pending application whose passport is being held by the post may withdraw their application and request the return of their passport if they have a need to travel elsewhere than the U.S. However, individuals must be aware of the ramifications of this as it pertains to future visa applications, especially applications for an ESTA clearance to travel under the Visa Waiver Program.

After returning the passport to an applicant making such a request, the post will issue a “refusal” (denial) of the visa application. This “denial” must then be disclosed on future visa applications and on any request for an ESTA clearance under the Visa Waiver Program.

With regard to ESTA processing, officials stated that this disclosure of the “refusal” would result in the ESTA application being sent for review, but if the review determined that the sole basis for refusal was due to the visa outage, the ESTA clearance would be issued.

The Department of State will update the public on the outage through its website, travel.state.gov, and through the websites for the individual posts. Of course, we will also keep our readers informed through continued email alerts and blog posts.

As always, please contact us with any questions.

The U.S. State Department has announced that it is experiencing technical problems with the primary computer system used to print and issue U.S. visas and other critical documents.

The problems related to the Consular Consolidated Database (CCD) has resulted in delays in printing visas, emergency U.S. passports, Consular Reports of Birth Abroad, and other documents. The issues are widespread and are not limited to any particular country or visa type.

With regard to visa processing, a hardware failure has prevented consular posts from receiving biometrics and other security clearances required for visa issuance since June 9.  Any person who submits a visa application or attends a visa interview on or after June 9 should expect a delay while posts are unable to print visas.

The Department experienced similar but unrelated issues with the CCD last summer that affected visa issuance for several weeks, and visa applicants should expect the same now while the Department works to resolve the problem and clear out the backlog of visas to be processed.

As always, please contact us with any questions.