As promised, we are doing our best to keep our clients informed as to what changes to expect and how their status may be affected. In particular, we are paying close attention to several Executive Orders that have been drafted and include provisions aimed at:
Please note, these are only draft orders, most of which would not go into effect until at least 90 days after being signed. We therefore do not anticipate any changes to the H-1B lottery system this year. We will be in touch with any further updates!
Late Sunday DHS indicated in writing that all Green Card holders would be admitted unless there was significant derogatory information that required further investigation. Additionally, many reports have surfaced of CBP and the Administration defying the numerous court Orders issued over the weekend. As a result people should remain vigilant and report any non-compliance. While we expect that the vast majority of our clients will continue to travel without issue (only birth in the 7 countries is grounds for entry denial – while holding a visa), feel free to email our firstname.lastname@example.org with your exact return flight information and we will arrange for an attorney to be available by phone when you land. Note – we will not charge clients for ensuring an attorney is on call, however, we will of course bill should our services be needed to provide assistance or interact with CBP. We will continue to provide updates as this continues to unfold.
First, and most importantly, this situation is constantly developing and there has been push back from thousands of immigration attorneys, along with the ACLU, concerned citizens and refugees, and various social justice and ethnic/religious organizations. The first major development occurred in Brooklyn Saturday, January 28th, where injunctive relief resulted in the release of individuals held pending removal at JFK Airport. Other legal actions have also been successful and DHS has reportedly released individuals who were being held. These orders prevent the detention and removal of people who are affected by that Judge’s Order, and this has been reported as relating to individuals currently held for removal or people in transit to the U.S. while holding a valid non-immigrant or immigrant visa. Individuals who have yet to depart for the U.S. may have to undergo the same legal challenges that those who were successful took.
Second, this EO lacks precision and clarity, which makes it difficult for us to anticipate the repercussions and advise our clients accordingly. It lacks adequate instruction to government agencies and includes multiple legal inconsistencies. This has left the collective immigration bar with several questions: does the EO only apply to the entry of individuals from named countries? Or, does is also apply to their receiving immigration benefits? In other words, will USCIS be able to issue an H-1B extension to someone born in Syria? Or, does it only prevent DOS from issuing a visa? Given the inconsistent language in many key parts of the EO, it is also unclear how someone who was perhaps born in Syria, but immigrated and became a Dutch citizen twenty years ago will be treated and whether such a person will be eligible for a visa and/or entry to the U.S. [note – AILA has reported that CBP was treating dual nationals as nationals of the excluded countries and deporting them].
Third, this will all become clearer as agencies have time to react and provide their own directions to the public and immigration attorneys. We understand the stress of this uncertainty and will do our best to provide updates on new developments and information as to what to expect. Please also know that, as the situation unfolds, AILA and other U.S. immigration attorneys are committed to protecting our clients and ensuring all immigration restrictions implemented by the new administration are within the bounds of the Constitution.
Based on what we do know, it is important to be aware of the following with regard to travel:
To be clear – while this note discusses those who should have a concern with travel or visa issuance at this time, we expect that the vast majority of our clients will face no travel concerns while traveling on current visas, so long as they are not from one of the enumerated countries. We do ask that anyone who encounters any unusual questions to please let us know so that we can stay abreast on how inspections and visas are being handled. We will report any and all concerns to AILA and, if necessary, the ACLU. We know that those of you of the Muslim faith who are traveling and are concerned with the language suggesting a religious test may be fearful of how reentry will be handled – thankfully, we have not yet received any reports that are concerning. We do invite clients of ours to email us at email@example.com with any planned reentry time/date and we will respond with an attorney contact who will be available, should you wish to have legal assistance as additional security.
As a final note, we understand the delicate and political nature of President Trump’s immigration initiatives and we respect everyone’s right to an opinion on this issue. However, as immigration attorneys and advocates for our clients, it is our opinion that these Orders are unconstitutional and contrary to our nation’s long-standing principles of acceptance and diversity.
While we agree it is important to address and protect the security of this nation, so as to provide a safe place for citizens to live and pursue their dreams, we do not agree with eliminating sensible visa policies in order to do so. As lawyers, we are especially troubled by President Trump’s introduction to the EO, which is dark and foreboding, states opinion as fact, and makes claims that do not withstand scrutiny (per CNN reporting with Peter Bergen). In our opinion, the order clearly lacks constitutional authority and appears to have been drafted by individuals without expertise in immigration matters, thus the unintended consequences we have seen (Note – Rudy Guliani has confirmed publicly he was responsible for drafting the EO). As the executive branch is supported by agencies of experts charged with the responsibility of reviewing and modifying policy and procedure, it is our opinion that DOS and DHS should be responsible for implementing any necessary changes relating to immigration.
If you feel strongly that this EO is unconstitutional or an inappropriate policy approach then you should voice your concern to DHS so that your opinion is recorded and considered during this review period.
** 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 **