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.
Seyfarth Synopsis: Although longstanding policy of U.S. Customs and Border Protection authorizes searches of electronic devices in the possession of travelers arriving in the United States, recent reports of such searches have heightened businesses’ concerns when their employees travel. In the event of such a search, this guidance informs employees about what they can expect, and provides employers with recommendations to ensure against loss, corruption or misuse of company information.
United States’ Customs laws and regulations (See, 8 U.S.C. § 1582, 19 C.F.R § 162.6) authorize customs officers to inspect, search and/or detain any person, baggage, and/or merchandise arriving in, and or departing from, the United States. This authority extends to inspections, searches and temporary detentions of electronic devices possessed by travelers, including mobile telephones, tablets, and laptop computers. Increasingly searches are becoming more common, and employees traveling with company data and/or information should carry this guidance when returning from foreign travel. “Supreme Court decisions have upheld the doctrine that CBP’s search authority is unique and does not violate the fourth amendment’s protection against unreasonable searches and seizures.” This exception allows CBP to conduct “routine” searches on luggage, devices, vehicles or persons without a warrant. “However, with this authority, CBP expects all of its officers to conduct their duties in a professional manner, and treat each traveler respectfully.”
Who May Be Chosen for an Inspection
United States Customs and Border Protection (“CBP”) guidance states that a variety of circumstances can lead agents to select a traveler for inspection, search and/or detention of electronic devices, including: travelers holding incomplete travel documents or lacking proper documents and/or visa; travelers who have previously violated a law that CBP enforces; travelers with a name that matches a person of interest in government enforcement databases; and/or travelers randomly selected for such a search. Selection for a search does not necessarily mean that CBP believes that you have done something wrong. A 2012 CBP Directive noted that “in the course of a border search, with or without individualized suspicion, an Officer may examine electronic devices and may review and analyze the information encountered at the border”.
At this time, CBP has not articulated policies that consider a traveler’s nationality as a factor supporting a search; however, not all criteria applied by CBP have been made public. CBP has also not disclosed whether travel to certain countries could draw scrutiny. There have been reports of foreign visitors as well as United States citizens being subjected to inspections.
What Will Occur During the Search
The manner in which a search is conducted may vary widely depending on a number of factors. A customs official may simply conduct a search through the device and then return it to you. At the other times, CBP may elect to take temporary custody (‘detention’) of the device for further examination. If CBP decides to detain your electronic devices, the customs officer will issue you a written receipt (Form 6051-D), which will detail what items are being detained, who at CBP will be your point of contact, and your own contact information in order to facilitate return of the items within a reasonable time.
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.”
Seyfarth Synopsis: The UK Parliament has passed the EU Withdrawal Bill, paving the way for the Government to invoke Article 50, the mechanism for leaving the European Union, by the end of March 2017.
On March 13, 2017, the UK Parliament passed the European Union (Notification of Withdrawal) Bill. The Bill’s purpose is to allow the Prime Minister to notify the European Union of the United Kingdom’s intention to withdraw from the European Union, through invocation of Article 50 of the Lisbon Treaty.
The British Prime Minister, Theresa May, has previously indicated that she wishes to make the notification, triggering such withdrawal, before the end of March 2017. The passing of this Bill now makes such a timetable likely.
What Will Happen Next?
Once Article 50 has been invoked, the United Kingdom will enter into a period of negotiation with the European Union. The parties have a period of two years to negotiate an exit agreement for the UK. If no agreement has been reached by the end of the two year period, all EU Treaties that apply to the UK will be void, unless the European Council (comprised of the Heads of all Member States) agrees to continue the negotiations.
USCIS recently announced that the agency will temporarily suspend premium processing for all H-1B petitions beginning on April 3, 2017. USCIS indicates the purpose of the suspension is to process H-1B petitions that have been pending for many months, including in particular those approaching the 240-day automatic extension limitation, which would thereby reduce overall H-1B processing times. Please find below a list of frequently asked questions with our insights.
1. What is the effective date of the suspension?
The premium processing suspension is effective on April 3, 2017. The last day that USCIS will accept H-1B petitions filed with premium processing is Friday, March 31, 2017.
2. How long will the suspension last?
USCIS states that the suspension may last up to six months. USCIS imposed a similar suspension in the past and lifted the suspension early.
3. Does the suspension apply only to H-1Bs or other visa categories?
The suspension is limited to H-1B petitions only. This includes H-1B petitions seeking to extend status, amend status, change status, consular process, or change employers.
4. Can H-1B petitions be filed with premium processing in the month of March? If so, will USCIS continue to honor premium processing cases if they are still pending beyond April 3rd?
Yes, USCIS will accept an H-1B petition filed with premium processing on or before Friday, March 31, 2017. We anticipate that any H-1B petition filed with premium processing that is receipted on or before March 31st will receive the full benefit of premium processing, even if the adjudication continues beyond April 3rd. However, based on the posted USCIS announcement, the agency has discretion to refund premium processing fees if the agency has not taken adjudicative action on the case within the 15-calendar-day premium processing period.
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.
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.
Seyfarth Synopsis: Immediate Stay of Trump’s Executive Order has been denied and travel ban remains halted for now.
On Friday, February 3, a Federal District Court in Washington issued a temporary restraining order (TRO), which prohibits the federal government from enforcing President Trump’s January 27, 2017 Executive Order that suspended travel to the United States for certain foreign nationals. This TRO took effect immediately and is in effect nation-wide. At present, any foreign national who was impacted by the travel ban can be admitted to the United States. However, this situation remains fluid and can change any day.
On Friday, January 27, President Trump signed an Executive Order which suspended travel into the United States for nationals from certain designated countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. This suspension in travel took effect immediately, and was to be in place for at least 90 days. More information on the Executive Order can be found in Seyfarth’s original alert and our updated alert.