Shortly before its summer recess, the United States Supreme Court agreed to hear oral arguments on the Trump administration’s revised travel ban against nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen. The hearing is expected to take place this fall.

Further, the Court has reinstated the travel ban for the six countries, but only insofar as it relates to foreign nationals who lack a bona fide relationship with a U.S. person or entity. Examples of individuals who do possess a bona fide relationship with a U.S. entity include students enrolled at U.S. universities and employees of U.S. companies.  Conversely, foreign nationals from the affected countries wishing to visit solely for tourism may encounter significant challenges entering the U.S.

This ruling will not impact U.S. employers that employ foreign nationals from any of the affected countries. U.S. employers may continue to sponsor their employees for employment-based visa petitions, and employees may continue to apply for work visas at U.S. Embassies and Consulates. However, all foreign nationals from these countries should nevertheless exercise caution when travelling to the U.S., as they can expect to face lengthy delays and questioning at the border as part of the administration’s ongoing “extreme vetting” measures.

Seyfarth Shaw is monitoring the developments closely, and will publish updated information accordingly.

As part of the Trump Administration’s extreme vetting efforts, certain visa applicants will now be required to complete a rigorous supplemental questionnaire prior to visa issuance. The information requested in the new, supplemental questionnaire is extensive, and includes the applicant’s full travel history for the past 15 years, including locations visited, dates, and source of funds for the visit; all passport numbers; names and dates of birth of all siblings, children, and spouses/partners; complete address and dates of residence for the past 15 years; employment history for the past 15 years; and all social media handles, phone numbers and email addresses for the past five years.

The supplemental questionnaire will not be required of all visa applicants. As part of the visa application interview and screening process, Visa Officers will decide when the individual visa applicant’s background warrants additional security checks. Previous travel by the visa applicant to areas controlled by terrorist groups is expected to make it more likely that the supplemental questionnaire will be requested. The U.S. Department of State estimates that approximately 65,000 people (less than 1% of 13 million visa applicants worldwide) may be requested to complete the supplemental questionnaire each year.

Continue Reading Extreme Vetting Measures To Include Questionnaires Asking for Detailed Travel History and Social Media Information

The order in question is the Trump Administration’s revised Executive Order of March 6, 2017 (“revised EO”). The revised EO would have temporarily restricted certain foreign nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen from entering the United States for a period of 90 days. The revised EO sought to resolve constitutional issues and ambiguities related to the initial Executive Order signed on January 27, 2017.

In early May 2017, a 13-judge panel of the 4th Circuit heard arguments over the revised EO and on May 25, 2017, the court issued its decision to uphold the preliminary injunction. Writing on behalf of the majority, Chief Judge Roger Gregory stated that the travel ban “drips with religious intolerance, animus, and discrimination.”  The judges ruled 10-3 to affirm in substantial part the earlier decisions that had blocked the ban, citing the violation of the First Amendment as authority to decline reinstatement of the travel ban.  The court rejected the Trump Administration’s argument that the travel ban was a matter of national security.

The Trump Administration can seek Supreme Court review of the Fourth Court decision. If the Supreme Court decides to hear the case, arguments would not commence until the Fall 2017 term.

On March 17, Secretary of State Rex Tillerson issued a cable to all diplomatic and consular posts worldwide calling for the immediate implementation of heightened screening of visa applications.  Through the cable, Secretary Tillerson instructed consular posts to undertake additional screening measures based on the conclusions of the interagency working groups mandated by the President’s Executive Order.  Visa processing screens at U.S. consular posts will be more invasive and time-consuming for certain individuals, particularly those from the countries listed in the President’s most recent Executive Order and those from Iraq.

Continue Reading New Department of State Cable Implements Extreme Vetting Measures

Seyfarth Synopsis: Federal judges from Hawaii and Maryland have issued nationwide Temporary Restraining Orders (TROs) effectively blocking the implementation of the Trump administration’s revised travel ban, which was scheduled to take effect on March 16, 2017.

Late on Wednesday, March 15, Judge Derrick K. Watson of the Federal District Court in Honolulu issued a nationwide TRO suspending the implementation of the Trump administration’s revised Executive Order (EO) and associated travel ban. Early Thursday morning, Maryland federal Judge Theodore D. Chang issued a separate TRO blocking key provisions of the EO from taking effect nationwide. Both decisions took the position that the revised EO violates the First Amendment because it was designed to discriminate against Muslims. According to Judge Watson, even the new order was “issued with a purpose to disfavor a particular religion, in spite of its stated, religiously neutral purpose.”

Continue Reading Federal Courts Temporarily Block the Trump Administration’s Revised Travel Ban

Following the challenges to the January 27, 2017 Executive Order titled Protecting the Nation from Terrorist Attacks by Foreign Nationals, on March 6, 2017 President Trump signed a new Executive Order titled Protecting the Nation from Foreign Terrorist Entry Into the United States.  This new Executive Order will go into effect on March 16, 2017 and includes many changes to the original order, particularly with regard to who is subject to the temporary travel ban.

The New Executive Order

The new Executive Order suspends entry of foreign nationals from countries designated by President Trump as representing a recognized threat, warranting additional scrutiny of nationals seeking to enter the United States.  The six countries included in the temporary ban are Iran, Libya, Somalia, Sudan, Syria, and Yemen.  The new Executive Order removes Iraq from the list of impacted countries.  In the Executive Order, President Trump indicates these countries were designated as countries of concern by the Obama administration and Congress, and he cites the Department of State’s Country Reports on Terrorism 2015 (June 2016) to demonstrate the heightened risks posed by nationals of these countries.  The Executive Order imposes a 90-day suspension on entry to the United States to allow the U.S. government to conduct a review and analysis of the national security risks.  As with the previous order, this order leaves open the possibility of including additional countries on the list.

Specifically, the suspension of entry to the U.S. applies only to foreign nationals of the designated countries who are outside the United States on the effective date of the order (March 16, 2017), did not have a valid visa at 5:00 p.m. EST on January 27, 2017, and do not have a valid visa on the effective date of the order.

As for other aspects of the new Executive Order, the Visa Interview Waiver Program will again be suspended, as it was in the previous order.  Visa applicants from all countries will need to apply in person at a U.S. Embassy or Consulate.   The Executive Order confirms that no immigrant or nonimmigrant visa issued before March 16, 2017 should be revoked, and any individual whose visa was revoked or canceled as a result of the prior Executive Order should be entitled to a travel document confirming permission to travel to the U.S. and seek entry.  In addition, United States Citizenship and Immigration Services (“USCIS”) will continue to adjudicate all naturalization, immigrant, and non-immigrant visa petitions and applications regardless of nationality.

Exemption from the Travel Ban

The following groups of foreign nationals are exempt:

Lawful Permanent Residents — also known as “LPRs” or “green card holders” — are not subject to this temporary travel ban.  This includes those individuals who hold passports from any of the six designated countries.

Dual nationals — individuals from one of the six listed countries who are also a citizen of a non-designated country — are not subject to the travel ban if they seek entry to the U.S. using a passport issued by a non-designated country.

Nonimmigrant Visa Holders — provided that the visa stamp was issued prior to January 27, 2017 and remains valid.

Foreign nationals holding a valid Advance Parole document.

Continue Reading Revised Travel Ban: President Trump Signs New Executive Order

Seyfarth Synopsis: This BIG Blog post addresses fourteen Frequently Asked Questions (FAQs) from employers and foreign nationals regarding President Trump’s recent Executive Order on immigration.

1.  I’m not from one of the listed countries but have international travel planned. Is there anything I should know or do?

If you are not from one of the listed countries and you have an unexpired visa stamp (or if you are Canadian and do not require a visa stamp), the Executive Order will not affect your ability to travel.  If you do not have an unexpired visa stamp and plan to apply at a U.S. Embassy or Consulate abroad, you should anticipate visa appointment backlogs when scheduling your appointment.  In addition, we expect that Consular officers will screen visa applicants more thoroughly and will not hesitate to place visa applications under administrative processing, particularly if the applicant possesses a degree in an academic field that is on the government’s Technology Alert List, including degrees in Nuclear Engineering, Chemical Engineering, Biomolecular Engineering, and Cybersecurity.

2.  I’m currently traveling internationally but I am not from one of the listed countries.  Is there anything I need to be aware of about returning to the U.S.?

Similar to the above, despite your country of birth and/or your current citizenship, you must  be prepared for delays when entering into the U.S. Please make sure you are carrying and presenting all of the necessary documents for admission in your visa category.  In addition, we are hearing reports of Customs and Border Protection officers asking to search phone contacts and social media information.  Please keep this in mind as you plan your travel and enter the U.S Specifically, if you have a connecting flight after your initial entry into the U.S., allow additional time between those flights to get through the Customs and Border control screening process.

3.  I already have a “Drop-Box” confirmation; can I still use the Drop-Box?

Although we have heard reports from various U.S. Embassies and Consulates (specifically, those in the UK, Canada, and India) that the “Drop-Box” visa applications are still being honored, you should not rely on using the Drop-Box option and should make an appointment with a U.S. Embassy or Consulate, as the Drop-Box program can be suspended without notice.

Continue Reading Immigration-Related FAQs In Response to President Trump’s Recent Executive Orders, as of February 2, 2017