A new travel restriction went into effect at 3:00 am EST on Tuesday barring passengers on foreign airlines coming to the United States from carrying electronic devices larger than a cellphone. According to Department of Homeland Security, the restricted items that cannot be in carried-on luggage include laptop computers, travel printers, and electronic games bigger than a cellphone. These items can only be carried in checked baggage. To learn who is impacted and who is not impacted, continue reading!
Just hours before President Trump’s new Executive Order or “Muslim Travel Ban” was to become effective, U.S. District Judge Derrick Watson in Hawaii issued a Temporary Restraining Order to stop the ban from being implemented on a national basis. The TRO was issued based on Judge Watson’s determination that the new Executive Order violated the Constitution’s First Amendment protections against religious discrimination and relied heavily on statements made by President Trump on the campaign trail and statements by Trump policy advisor Stephen Miller that the intent of the ban is to ban Muslims. President Trump vows to fight the ruling to the Supreme Court. Next stop: 9th Circuit Court of Appeals!
For other recent content from the Mintz Levin Immigration Practice, click here.
On March 6, 2017, President Trump signed a new Executive Order (“EO”), Protecting the Nation from Terrorist Attacks by Foreign Nationals, revoking the prior EO 13679 signed on January 27, 2017. EO 13679 included, among other provisions, a 90 day suspension of U.S. visa issuance and entry into the U.S. for individuals from seven countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. EO 13679 also suspended the U.S. Refugee Admissions Program (USRAP) for 120 days, suspended Syrian refugee admissions indefinitely, and reduced the number of refugee admissions to 50,000 during Fiscal Year 2017.
EO 13679 was successfully challenged in the federal courts and enforcement of portions remain halted. See our previous alerts relating to EO 13679 and subsequent updates here. This new EO is more narrowly drawn than EO 13679, restricting travel for individuals from certain countries identified as posing potential national security risks.
The March 6 Executive Order, which will become effective on March 16, 2017, revokes EO 13679 and implements a host of measures. To review these measures, click here to read our full alert.
The European Commission is being urged to require U.S. citizens to obtain visas for travel to Europe in an effort to obtain full visa waiver reciprocity for all European Union (EU) nations.
Currently, five EU nations are not eligible to travel to the U.S. under the visa waiver program: Bulgaria, Croatia, Cyprus, Poland and Romania. Citizens of these countries must obtain visas from a U.S. Consulate or Embassy abroad before visiting the United States.
In response, the European Parliament has approved a non-binding resolution urging the European Commission to temporarily suspend visa-free travel of U.S. citizens to EU countries. If adopted, U.S. citizens would be required to obtain visas for travel to Europe until the United States extends the visa waiver program to all EU nations.
The resolution cites a rule requiring the European Commission to take action within two years against any country that fails to provide full visa reciprocity for EU nations. The European Commission notified the U.S. in April 2014, so the two-year “warning period” has expired. At the same time, Canada, Australia, Brunei and Japan were also notified of their failure to provide full reciprocity. Australia, Brunei and Japan have since extended visa-free travel to all EU nations, and Canada has agreed to do so later this year.
The European Parliament has urged the Commission to take action to suspend visa-free travel for U.S. citizens within two months, but it remains unclear if this will happen. The European Commission has apparently expressed concern that imposing visa requirements on American travelers to Europe will negatively affect both tourism and trade and, as a result, the European economy. If the resolution is adopted within the requested timeframe, it may be just in time for the busy summer travel season.
Mintz Levin will monitor this situation and provide further updates as they become available.
On February 9, 2017, a three-judge panel of the U.S. 9th Circuit Court of Appeals ruled unanimously against the Government’s emergency motion to stay the District Court’s Temporary Restraining Order (the “TRO”) halting the implementation of major portions of President Trump’s January 27th Executive Order. (See our previous alerts on the order here, or click here to view a video featuring Susan Cohen, Chair of Mintz Levin’s Immigration Practice.) Therefore, the TRO remains in effect and travel to the U.S. by individuals from the seven designated countries is governed by the same laws as existing before the Executive Order.
To read the full alert, click here.
At the end of the 2016 calendar year, the Administrative Appeals Office (AAO) published a welcome precedent decision, Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). In this case, the AAO has significantly revised the framework for evaluating National Interest Waiver (NIW)-based immigrant visa petitions that had been established in 1998 in Matter of New York State Dep’t of Transp.. (NYSDOT).
Because the NIW route to permanent residence (green card) status avoids the labor certification process (which involves testing the U.S. labor market and proving to the U.S. Department of Labor that there are no U.S. workers, able, willing, qualified and available for the job in question) and allows a foreign national to petition for himself or herself (or to have an employer petition on his or her behalf), it is an attractive immigration option for those who qualify. However, the adjudication standard set in the NYSDOT case was confusing and restrictive, and deterred many people from utilizing this immigration category as a pathway to achieving lawful permanent residence status.
Matter of Dhanasar breathes new life into this green card category.
Under INA §203(b)(2)(B)(i), USCIS may grant a national interest waiver of the labor certification requirement, if the petitioner demonstrates that the beneficiary is a member of the professions holding an advanced degree or equivalent (or has exceptional ability in the arts, sciences or business) and will substantially contribute to the U.S.’s economy, culture, educational interests or welfare. The foreign national’s contributions must be in the sciences, arts, professions or business and his or her work must be in the “national interest of the United States”.
Under the prior NYSDOT standard, a petitioner had to meet a three-part test, proving that: (1) the employment is of substantial intrinsic merit; (2) any proposed benefit be national in scope; and (3) the national interest would be adversely affected if a labor certification were required for the foreign national.
Update – NEW BOSTON EVENT DATE: Due to safety concerns surrounding the recent snow storm, Mintz Levin rescheduled the Boston Immigration Seminar to Thursday, March 2. To register, please click here or see below. We hope you can join us!
On February 9th (Boston) and February 16th (New York), our very own Kevin McNamara, Susan Cohen, and Bill Coffman will lead a live seminar designed for in-house counsel, immigration specialists, HR professionals, talent managers, and other internal stakeholders to review changes affecting the hiring and continued employment of foreign nationals. Topics will include:
- Worksite visit preparation
- Record-keeping requirements
- The new Form I-9 and the importance of E-Verify compliance
- How to prepare for increased scrutiny at a US port of entry
- New high-skilled worker regulations
- Strategies and alternatives for H-1B visa cap and prospects for FY 2018
Don’t miss this important event. For additional details and registration, please contact Cassie Bent at CMBent@mintz.com!
In light of the general unavailability of H-1B visas due to the limited and inadequate H-1B visa quota, it is more important than ever that U.S. employers and highly skilled foreign nationals be able to take maximum advantage of exemptions from the quota. While exemptions to the quota are laid out in the immigration law, until now nuances and variations relating to these exemptions have been discussed only in USCIS policy memoranda and informal guidance. Programs that facilitate the employment in the U.S. of foreign entrepreneurs such as Global Entrepreneur in Residence (GEIR) programs rely heavily on the exemptions available in the immigration law, as do a myriad of private companies which depend on foreign talent to drive their business in the U.S. For all employers relying on exemptions from the H-1B quota, it is critical that the rules and parameters be crystal clear. Therefore, the publication by the Department of Homeland Security (DHS) on November 18, 2016 of a regulation clarifying and crystallizing prior policy and informal guidance is a welcome development. The regulation comes into effect on January 17, 2017, and I summarize it below. No one can predict with certainty whether the incoming Trump administration will allow the rule to stand or will take action to rescind it, so stay tuned for future postings on this topic.
In a final regulation published on November 18, 2016 which takes effect on January 17, 2017, DHS has clarified the requirements and parameters associated with cap-exempt employment of H-1B workers by nonprofit entities that are affiliated with or related to an institution of higher education or other cap-exempt institutions. This final regulation also clarifies that governmental research organizations, also exempt from the H-1B cap, include federal, state and local organizations whose primary mission is the performance or promotion of basic or applied research.
This afternoon, a draft of the Continuing Resolution (CR) began circulating in Washington, DC. The CR, which Congress will likely pass early next week, will keep the federal government running through the November election. According to Alexander Hecht, Vice President of Government Relations at ML Strategies, upon enactment, the EB-5 Regional Center Program will be extended through December 9, 2016 – the length of this current CR. “Since EB-5 was contained in last year’s Omnibus appropriations bill, it is automatically extended by a Continuing Resolution for its duration. There was no need for legislators to specifically mention EB-5 in this Continuing Resolution,” stated Hecht. Stakeholders should continue to monitor developments related to the CR, but according to Hecht, “passage in both chambers seems very likely early next week, as legislators on both sides of the political aisle are anxious to get home to focus on campaigning for the November elections.”