This didn’t appear on the radar until last week when President Trump raised the specter of a U.S. government shutdown in a tweet. While we understand there are discussions about a two-week funding extension, there are also clearly disagreements between the two parties that could scuttle a deal, and in any event two-weeks reprieve is a very short window. Currently without a continuing funding resolution, Congress once again faces the possibility of a government shutdown at the end of the day Friday, December 8th. In light of this possibility, it is important to understand how a government shutdown might affect immigration matters. In general, with the exception of USCIS (which is directly funded by the fees applicants pay), in the event of a government shutdown, all but “essential” personnel are furloughed and are not allowed to work. We will know more before the end of the week but ask that clients pay close attention to this issue – most importantly, if clients have planned visa appointments there is the possibility that those appointments will be cancelled by a shutdown – thus delaying issuance and planned return to the U.S.
We are continuing to monitor this issue and will provide updates as information becomes available – unfortunately we only know what is currently being reported.
On Monday, December 4, the Supreme Court issued two orders allowing the third version of the Trump administration’s travel ban to go into effect while further legal challenges against it continued. The third version of the travel ban, issued September 24, restricts travel for nationals of eight countries, six of which are predominantly Muslim. (For more details on this travel ban, please see our September 29 News Update.) The Supreme Court did not provide any reasoning for the orders, which also urge appeals courts to move swiftly to decide on the lawfulness of the travel ban. There are currently appeals pending in the Ninth Circuit and the Fourth Circuit, with oral arguments in both cases scheduled for this week. Challengers in both cases argue that the travel ban unconstitutionally discriminates based on religion and nationality. Monday’s orders unfortunately increase the possibility that the Supreme Court could side with the Trump administration should these cases reach them.
On December 1, a federal judge for the District of Columbia ruled in favor of a group of venture capitalists, entrepreneurs, and companies who had sued the Trump administration over the delay of the International Entrepreneur Rule. Under this rule, discussed further in our June 2017 Newsletter and July 2017 Newsletter, foreign entrepreneurs who meet certain requirements may be given permission to enter and stay in the country to start and run their businesses. The rule had been set to take effect on July 17, but a week prior to that date the Trump administration delayed its implementation. The administration officially began work on rescinding the rule last week. In siding with the group, the federal judge found that the Administration’s decision to delay the rule failed to comply with notice and comment procedures pursuant to the Administrative Procedure Act, and that its reasoning for failure to comply was vague. Pursuant to the judge’s decision, the International Entrepreneur Rule must now take effect.
This is another setback for the Trump Administration in the Federal arena related to Immigration and we anticipate that the court’s decision will be upheld if appealed. Additionally, while the Administration is permitted to move forward with its plans to rescind the International Entrepreneur Rule, in the meantime foreign entrepreneurs who may be eligible for benefits under the rule are permitted to apply. Unfortunately, there are currently no official instructions to the field for this process, and there is no USCIS internal guidance regarding the application process and procedures, so we are uncertain as to how long such an application will take and which office to mail in our applications. As in other situations where the government has lost in Federal Court, we do expect updates in the reasonably near future.
We will continue to monitor the implementation of this important rule.
** This newsletter/memo is provided for informational and discussion purposes only. It does not act as a substitute for direct legal contact on an individual basis **