Immigration agencies release guidance affecting persons from banned countries after Supreme Court lifts the Temporary Restraining Order, in part
The agency seeks comment on its plans to scrap the Obama-era rule
CBP does away with paper form I-94 and I-94W on arrival to and departure from the United States.
Institution conferring Master’s Degree must be accredited as a U.S. institution of higher learning at time degree is conferred, not at time of adjudication of the H-1B
Per the Latest Supreme Court Decision, the law demands "a causal or means-end connection between a legal violation and naturalization."
The latest news at the firm including recent and upcoming events and publications.
1. State Department Issues Guidance on Trump ‘Travel Ban’; Hawaii Motion Denied; More Court Action
The Departments of State and Homeland Security recently released guidance on President Trump’s executive order 13780, frequently referred to as the “travel ban.” Klasko issues client alert summarizing agency guidance for affected foreign nationals, available here.
Agency guidance was made available to the public following a U.S. Supreme Court decision on June 26, 2017 partially granting the government’s request to stay lower court injunctions against the travel ban.
Depts. Of State, Homeland Security, Issue Guidance on the Supreme Court Decision
The guidance states that implementation of the executive order, in compliance with the Supreme Court’s decision, began June 29, 2017. The Department said it does not plan to cancel previously scheduled visa application appointments. For nationals of the six affected countries—Libya, Iran, Somalia, Sudan, Syria, and Yemen— a consular officer will make a determination in the course of the interview whether an applicant otherwise eligible for a visa is exempt from the executive order or, if not, is eligible for a waiver and may be issued a visa. Consular officers may issue visas to nationals of the six designated countries on a case-by-case basis, the guidance states, if they determine that issuance is in the national interest, the applicant poses no national security threat to the United States, and denial of the visa would cause undue hardship.
The guidance reiterates, per the executive order, that no visas issued before the effective date of June 29 will be revoked and clarifies that the order does not apply to nationals of the affected countries who held valid visas on June 29, 2017.
The E.O. further instructs that any individual whose visa was marked revoked or cancelled solely as a result of the original E.O. issued on January 27, 2017 (E.O. 13769) will be entitled to a travel document permitting travel to the United States, so that the individual may seek entry. Any individual in this situation who seeks to travel to the United States should contact the closest U.S. embassy or consulate to request a travel document.
The Supreme Court decision specifies that the travel ban may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States. The guidance further advises that applicants seeking B, C-1, C-3, D, or I visas “will need to make a credible claim to a consular officer at their visa interview that they have a bona fide close familial relationship with a person in the United States or of a bona fide, formal, documented relationship with an entity in the United States that was formed in the ordinary course, rather than for the purpose of evading the E.O., for the visa applicant to be exempt from the E.O. based on the Supreme Court order.” Alternatively, the Department noted, some applicants may qualify for an exemption, and others may qualify for a waiver. Qualified applicants in nonimmigrant visa categories not listed above “are considered exempt from the E.O., because a credible claim of a bona fide relationship with a person or entity in the United States is inherent in the requirements for the visa classification,” the guidance states.
Qualified applicants in the immediate-relative and family-based immigrant visa categories, for example, are exempt from the travel ban because a credible claim of a bona fide close familial relationship is inherent in the requirements for petition approval. Likewise, qualified employment-based immigrant visa applicants generally are exempt for the same reasons; namely, “because they have a credible claim of a bona fide, formal, documented relationship with an entity in the United States formed in the ordinary course.” However, unlike other employment-based immigrant visa applicants, certain self-petitioning employment-based first preference applicants with no job offer in the United States and special immigrant visas under INA section 101(a)(27) may be subject to the travel ban unless they have a credible claim of a bona fide close familial relationship with a person in the United States or of a bona fide, formal, documented relationship with an entity in the United States that was formed in the ordinary course, rather than for the purpose of evading the executive order, the guidance states.
Likewise, diversity visa applicants from the affected countries “will need a credible claim of a bona fide close familial relationship with a person in the United States or of a bona fide, formal, documented relationship with an entity in the United States that was formed in the ordinary course, to be exempted under the provisions of the E.O., or qualify for a waiver, before they can be issued a visa during the suspension,” because a relationship with a person or entity in the United States is not required for such visas.
The guidance notes that persons who are not exempt on the basis of the Supreme Court decision may still qualify for one of the exemptions or waivers outlined in the executive order itself. Also, if a principal visa applicant qualifies for an exemption or a waiver under the executive order, a qualified derivative is also exempt. The order does not restrict the travel of dual nationals if they are traveling on the passport of an unrestricted country and, if needed, hold a valid U.S. visa, the notice states. This applies even if they hold dual nationality from one of the six restricted countries. Also, U.S. lawful permanent residents are not affected by the executive order.
Ninth Circuit denies Hawaii Appeal seeking clarification on ‘bona fide relationship;’ Defers to Supreme Court to interpret its own Decision
Meanwhile, litigation grew out of challenges to the administration’s interpretation of what constitutes a “close family relationship,” a term the Supreme Court neglected to define in its June 26 decision. On July 13, 2017, a federal judge in Hawaii ruled that the travel ban does not to grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States. The Trump administration filed a motion with the Supreme Court on July 14, 2017, asking for clarification and a stay of the Hawaii order and interpretation, which expanded the group of individuals who qualify for an exemption. “The Supreme Court has had to correct this lower court once, and we will now reluctantly return directly to the Supreme Court to again vindicate the rule of law and the Executive Branch’s duty to protect the nation,” Attorney General Jeff Sessions said.
The Supreme Court issued an order on July 19, 2017 denying the administration’s motion and allowing the district court’s broader interpretation of “close family relationship” to take effect in the interim. However, it also stayed a portion of the district court order that sought to exempt all refugees from the ban who were assigned to a U.S. resettlement organization, an interpretation that would have greatly expanded the number of refugees who qualify for an exemption. Instead, as a result of the Supreme Court decision, refugees will be forced to demonstrate close ties to persons or entities in the U.S. in addition to their U.S. resettlement assignments.[Back to Top]
2. DHS Delays, Plans to Propose Rescinding International Entrepreneur Rule
As expected, DHS has delayed the effective date of the International Entrepreneur Rule to provide the agency with an opportunity to obtain comments from the public regarding a proposal to rescind the rule. Klasko issues client alert discussing the move, available here.
As expected, the Department of Homeland Security (DHS) has delayed the effective date of the International Entrepreneur Rule that was scheduled to take effect July 17, 2017. The Federal Register notice, published on July 11, 2017, states that this delay ” will provide DHS with an opportunity to obtain comments from the public regarding a proposal to rescind the rule pursuant to Executive Order (E.O.) 13767, ‘Border Security and Immigration Enforcement Improvements.’ ” DHS said it will issue a Notice of Proposed Rulemaking soliciting public comments on the proposal to rescind the IE Final Rule.
The new effective date for the final rule, with one exception, is March 14, 2018. In the final rule, DHS added the Department of State Consular Report of Birth Abroad (Form FS-240) to the regulatory text and to the “List C” listing of acceptable documents for Form I-9 verification purposes. As part of the final rule, DHS also revised the accompanying form instructions to reflect this change. As this provision is unrelated to entrepreneur parole under the final rule, this one provision will go into effect on July 17, 2017, as originally provided, the notice states.
The final rule amended DHS regulations to include criteria that would guide the implementation of the Secretary of Homeland Security’s discretionary case-by-case parole authority as applied to international entrepreneurs. Specifically, the notice states, it applied to international entrepreneurs who can demonstrate that their parole into the United States under § 212(d)(5) of the Immigration and Nationality Act (INA) would provide a significant public benefit to the United States. In accordance with the final rule’s criteria, such potential would be indicated by, among other things, the receipt of significant capital investment from U.S. investors with established records of successful investments, or obtaining significant awards or grants from certain federal, state, or local government entities. In addition to defining criteria for the favorable exercise of the Secretary’s discretionary parole authority, the final rule established a period of initial parole stay of up to 30 months (which may be extended by up to an additional 30 months) to facilitate the applicant’s ability to oversee and grow his or her start-up entity in the United States.
Comments on the proposal to rescind the rule are due no later than August 10, 2017, with instructions available here. A letter from a group of investors and startup founders in support of the International Entrepreneur Rule is available here. The original final rule, for reference, is available here.[Back to Top]
3. I-94 Arrival/Departure Info Now Available Online for Air and Sea Travelers
U.S. Customs and Border Protection (CBP) recently announced that foreign visitors arriving to the United States via air or sea no longer must complete the paper Form I-94 Arrival/Departure Record or Form I-94W Nonimmigrant Visa Waiver Arrival/Departure Record.
Such travelers who need to prove their legal-visitor status to employers, schools and universities, or government agencies, can now access their CBP arrival/departure record information online. CBP said it is gathering travelers’ arrival/departure information automatically from their electronic travel records. Because advance information is transmitted only for air and sea travelers, CBP will still issue a paper I-94 at land border ports of entry.
If travelers need the information from their I-94 admission record to verify immigration status or employment authorization, the record number, and other admission information, CBP encourages them to obtain the I-94 number here.
Upon arrival, a CBP officer stamps the travel document of each arriving nonimmigrant traveler with the admission date, the class of admission, and the date until which the traveler is admitted. If a traveler would like a paper I-94, one can be requested during the inspection process. All requests will be accommodated in a secondary setting, CBP said.
Upon leaving the U.S., a traveler previously issued a paper I-94 should surrender it to the commercial carrier or to CBP upon departure. Otherwise, CBP will record the departure electronically via manifest information provided by the carrier or by CBP.
A related fact sheet is available here.
[Back to Top]
4. USCIS Issues Policy Guidance on H-1B Master’s Degree Cap Exempt Case
“USCIS personnel are directed to follow the reasoning in this decision in similar cases,” the memo states. The decision clarifies that to qualify for an H-1B numerical cap exemption based on a master’s or higher degree, the conferring institution must have qualified as a “United States institution of higher education” at the time the beneficiary’s degree was earned.
In Matter of A-T- Inc., Adopted Decision 2017-04 (AAO May 23, 2017), the California Service Center director denied the H-1B petition, concluding that the beneficiary did not qualify for the claimed master’s cap exemption because the degree-conferring institution was not accredited when it awarded the beneficiary’s master’s degree. The petitioner asserted that a master’s degree does not need to be from a U.S. institution of higher education when the degree is awarded to qualify for the master’s cap exemption, but rather that a beneficiary may qualify for the exemption if he or she earned a degree from an entity that qualified as a U.S. institution of higher education at the time of adjudication. The Administrative Appeals Office (AAO) disagreed, noting that the degree must have been earned from an institution that has either been accredited or granted preaccreditation status. Among other things, the AAO noted that if a beneficiary could qualify for the master’s cap exemption based on accreditation or preaccreditation that happens long after the degree was earned, this would not necessarily reflect the quality of the beneficiary’s education. Conversely, the beneficiary subsequently could become ineligible for the exemption if the institution ended up not being accredited. Thus, the AAO noted, the petitioner’s proffered interpretation introduces uncertainty for graduates seeking immigration benefits over time. In contrast, the AAO said, under its interpretation, an individual who earns a degree from an accredited or preaccredited institution may continue to qualify for the master’s cap exemption even if the institution later closes or loses its accreditation status. Therefore, the AAO said it interprets the statute as requiring that the institution’s qualifications be established at the time the degree is earned, and the date the beneficiary earned his master’s degree is critical.[Back to Top]
5. Minor Lies Cannot be Used to Revoke U.S. Citizenship
On June 22, 2017, the U.S. Supreme Court ruled on the issue of when a lie during the naturalization process may lead to loss of U.S. citizenship.
Divna Maslenjak, an ethnic Serb, lied during her naturalization process about her husband’s service as an officer in the Bosnian Serb Army. When this was discovered, the government charged her with knowingly procuring her naturalization contrary to law because she knowingly made a false statement under oath in a naturalization proceeding. Initially, a district court held that to secure a conviction, the government need not prove that her false statements were material to, or influenced, the decision to approve her citizenship application.
The U.S. Court of Appeals for the Sixth Circuit affirmed the conviction. However, the Supreme Court noted that the law demands “a causal or means-end connection between a legal violation and naturalization.” The Supreme Court said that to decide whether a defendant acquired citizenship by means of a lie, “a jury must evaluate how knowledge of the real facts would have affected a reasonable government official properly applying naturalization law.” The Supreme Court therefore said that the jury instructions in this case were in error, vacated the judgment of the Court of Appeals, and remanded the case for further proceedings consistent with its finding.[Back to Top]
6. Klasko News
2017 KLASKO EB-5 SEMINAR
On Friday, October 13, the Klasko EB-5 team invites you to get the latest on EB-5 Visa Program developments and some practical advice from the experts. Register here. October will be here before you know it!
IN THE NEWS
William Stock on the Latest Trump Travel Ban News
On Monday, June 26, SCOTUS broke for recess by allowing parts of Travel Ban 2.0 to be take effect now, while hearing arguments upon their its return in October. Ahead of the implementation guidance, Bill weighed in on what a “bona fide relationship” might mean, on June 26 on Reuters.com. On Tuesday, June 27, Bill spoke with Kerri Miller on MPR alongside a columnist for the Boston Herald, on what it all meant. Amid the uncertainty before guidance was issued, WJLA in DC quoted Bill on his expectations of implementation being “a bit more orderly” than the first iteration of the Travel Ban in January. And finally, after a Hawaiian judge expanded the definition of “bona fide relationship” to include grandparents, CBS News Radio featured an audio byte from Bill in their 11:00 a.m. broadcast on Friday, July 14.
A Creative Option for Minors to Act as EB-5 Investors
Amid the current EB-5 backlog times, it’s not uncommon for a minor to reach of the age majority before completing the EB-5 process. Daniel B. Lundy penned this creative option featured on the NES Financial blog, and in the corresponding eBook Insights from Experts: Medallion Partners Cover Hot Industry Topics alongside Catherine DeBono Holmes.
A Montgomery County Community Conversation about Immigration
Klasko Senior Associate, Feige Grundman, was quoted in the Glenside News on Wednesday, June 28, the day after sitting on a panel addressing the plight of refugees and immigrants. The community forum was attended by over 150 residents and was moderated by Dr. Val Arkoosh, chairwoman of the Montgomery County Board of Commissioners. Feige and the rest of the panel agreed that the best way to get involved is to let your “local officials to hear that you care.”
Julianne Opet in the Legal Intelligencer: Why the Supreme Court Must Take up the Establishment Clause Question presented by the Travel Ban
After the flurry of activity from SCOTUS and the Trump Administration at the beginning of the month, in an article published in The Legal Intelligencer on June 19, Klasko associate Julianne Opet examines the canon of constitutional avoidance and how it might impact the Supreme Court’s review of the travel ban in October.
AWARDS AND RANKINGS
Best Place to Work Two Years in a Row
For the second year in a row, Klasko Immigration Law Partners is very proud to be recognized by the Philadelphia Business Journal as one of the Best Places to Work. The contest is based on employee surveys and contains various levels of safeguards to protect the integrity of the process. Since its founding, one of the biggest priorities has always been to create a terrific work environment in which all employees could flourish.
RECENT SPEAKING ENGAGEMENTS
H. Ronald Klasko | Daniel B. Lundy | Anu Nair
Last week, the 2017 San Francisco EB-5 and Investment Immigration Convention featured three of the Klasko partners as speakers on panels later this week from July 27 – 28. H. Ronald Klasko moderated a panel focusing on representation of investors in failed and fraudulent projects, entitled “EB-5 Receivership and Representation of Investors in Troubled Projects”. Daniel B. Lundy’s presentation, entitled “Agent Due Diligence- Project Failure Pre and Post I-526 Approval,” examined ways to avoid picking bad projects, monitoring projects to make sure they are on track, and ways to deal with the immigration consequences of a troubled project and preserve the immigration benefits of the investment. Anu Nair also moderated a panel entitled “India: EB-5’s New Frontier” and discussed how best to represent Indian investors throughout the EB-5 process.
Elise A. Fialkowski
On Monday, July 10 as part of Lehigh University’s Global Village Session, Elise presented an overview of non-immigrant and immigrant visa requirements and procedures. With a culturally diverse group of attendees, the session’s goal is to build and nurture powerful global networks.
UPCOMING SPEAKING ENGAGEMENTS
Elise A. Fialkowski
On Friday, September 15, Elise will be presenting an in-person and simulcast webinar entitled “U.S. Immigration Laws Under the Trump Administration” for the Pennsylvania Bar Institute for CLE credit. Elise will help navigate the immigration system in order to properly counsel clients in an atmosphere of increased work site crackdowns, detention and removal of immigrants and bans on immigrants from certain countries. Click here for more details and to register.
ICYMI: RECENT BLOG POSTS AND ALERTS
Updated Standards and Guidelines for Redeployment of EB-5 Investment Funds
Ron, along with two respected securities lawyer colleagues, have revised a White Paper issued in February 2017 on the issue of redeployment of investors’ funds to reflect the new policies adopted by the USCIS.
The Anatomy of an EB-5 Work Out
Daniel B. Lundy explains what happens after the SEC files a complaint and how EB-5 investors can protect their interests. Co-authored by Catherine DeBono Holmes, the article uses their experiences in which the SEC has accused a project promoter of fraud or misappropriation of EB-5 funds, and a receiver has been appointed.
8 Long-Term Planning Tips for Research-Based Petitions
Some of the most labor-intensive petitions to prepare are the research-based employment ones. Academic life is hectic and stressful enough without preparing evidence for a visa petition. Here are eight tips on what you can do to prepare for a successful research-oriented petition later on in your career.
Latest Client Alerts on Developments from the Trump Administration
Three client alerts were issued from Klasko Immigration Law Partners to keep up Klasko clients up-to-date on the latest activity from SCOTUS and the White House in regards to the Travel Ban and its guidance on implementation a week later. Then the announcement delay of the implementation of the much-anticipated “Startup Visa” or the International Entrepreneur Rule.
Klasko Staff: Kingpins of Immigration
On Friday afternoon, July 21, Klasko staff members descended on Lucky Strike at 13th and Chestnut Streets to battle it out for top prizes: the ultimate bragging rights and a commemorative trophy. After a nail-biting 10th frame, the team calling themselves the “L-1 SPIN-tracompany Transferees” came out on top and claimed their trophies. With only a few gutter balls, food and fun were had for all.
This newsletter was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Klasko Immigration Law Partners is an active member.[Back to Top]