Travel Restrictions Multiply: Making Sense of Travel Ban 4.0

On January 31, 2020, President Donald Trump issued his fourth proclamation banning travel to the United States from certain countries. From the time the first travel ban was issued in September 2017, countless people from throughout the world have lost the opportunity to study, live, and work in the United States. This blog post sets out the restrictions, exemptions, and waivers that govern the latest travel ban to inform those who may be impacted.

Please note that the president also issued a proclamation on January 31, 2020 banning the entry of certain individuals who may risk transmitting Coronavirus. While this ban is not discussed below, you can find more information here: https://www.whitehouse.gov/presidential-actions/proclamation-suspension-entry-immigrants-nonimmigrants-persons-pose-risk-transmitting-2019-novel-coronavirus/.

TRAVEL BAN 4.0

Beginning February 21, 2020, the fourth travel ban will come into effect, which will expand the existing ban to include Myanmar, Eritrea, Kyrgyzstan, Nigeria, Sudan, and Tanzania. At that point, the following restrictions will be in place:

• Eritrea: Entry suspended for immigrants, except as Special Immigrants who have provided assistance to the U.S. government

• Kyrgyzstan: Entry suspended for immigrants, except as Special Immigrants who have provided assistance to the U.S. government

• Iran: Entry suspended for immigrants and nonimmigrants, except for F visa applicants (students), M visa applicants (vocational students), and J visa applicants (exchange visitors). Although they may be admitted, F, M, and J visa applicants are subject to enhanced screening.

• Libya: Entry suspended for immigrants and temporary visitors on B-1/B-2 visas for business or tourism.

• Myanmar: Entry suspended for immigrants, except as Special Immigrants who have provided assistance to the U.S. government

• Nigeria: Entry suspended for immigrants, except as Special Immigrants who have provided assistance to the U.S. government

• North Korea: Entry suspended for all immigrants and nonimmigrants

• Somalia: Entry suspended for all immigrants and enhanced screening required for all nonimmigrants

• Sudan: Entry suspended for all diversity visa immigrants

• Syria: Entry suspended for all immigrants and nonimmigrants

• Tanzania: Entry suspended for all diversity visa immigrants

• Venezuela: Entry suspended for certain government officials and their family members on B1/B2 temporary visas for business or tourism

• Yemen: Entry suspended for all immigrants and for temporary visitors on B-1/B-2 visas for business or tourism

Please note: The word “immigrant” above describes people who intend to live in the United States indefinitely, and the term “nonimmigrant” describes people who intend to come to the United States under a temporary visa status.

Unless an exemption applies or a person is eligible for a waiver, travel restrictions apply to those who are outside of the United States on the effective date of the applicable travel ban, do not have a valid visa on the applicable effective date, and do not apply for reinstatement of a revoked visa or other travel document under Executive Order 13769.

EXEMPTIONS

The following types of people are exempt from the travel bans:

• Lawful permanent residents;

• Those who are admitted to or paroled into the U.S. on or after the applicable effective date;

• Those who have a document other than a visa (e.g., transportation letter, boarding foil, advance parole document) valid on the applicable effective date or issued on any date thereafter;

• Dual nationals of a designated country who are traveling on a passport issued by a non-designated country;

• Those traveling on a diplomatic visas, NATO visas, C-2/U.N. visas, or G-1, G2, G-3, or G-4 visa; or

• Those who have been granted asylum in the U.S., refugees who have been

  admitted to the U.S.; or individuals who have been granted withholding of removal, advance parole, or protection under the Convention Against Torture.

WAIVERS

A waiver may be granted if a person demonstrates to a U.S. consulate / embassy (in the case of a visa application) or U.S. Customs and Border Protection officer (in the case of an application for entry to the United States), that they meet the following criteria:

• Denying entry would cause the person undue hardship;

• The person’s entry would not pose a threat to the national security or public safety of the U.S.; and

• The person’s entry would be in the national interest

CONCLUSION

In practice, waivers have been granted sparingly, and it is advisable to seek legal counsel in applying for a waiver. Without discussing the specifics of an individual’s case, it is impossible to give legal advice. For this reason, I recommend that anyone schedule a consultation with an immigration attorney who is experienced in helping people in their situation. The information provided here is only intended as general information and is not a substitute for legal advice.

Image credit: Pixabay

5 Surprising Facts About Marriage-Based Green Cards

Tailwind Immigration Law has been fortunate to advise a number of U.S. citizens in their efforts to bring their spouses to the United States.

The following facts about the marriage-based green card process often surprise U.S. citizens preparing for a green card application:

It’s a long process.

When the green card was first introduced in the 1940s, immigrants simply registered their presence by visiting any U.S. post office.

With the advent of FBI background checks, and the increasing backlogs at government processing centers, it is now commonplace for a green card application to take 1-2 years, or even longer.

These timelines vary depending on the time it takes an applicant to prepare their application materials, the service center that processes the application, any requests for additional evidence made by the U.S. government, and other factors.

Work and travel authorization can make the wait more manageable.

If the green card application is filed while the foreign spouse is lawfully in the United States, the foreign spouse may file applications for work and travel authorization at the same time as their green card application.

Currently, USCIS is processing these work and travel applications in approximately 6-8 months, although these processing times are subject to change.

Please note that work and travel authorizations are not available to applicants who apply for green cards from outside the United States. Additionally, USCIS will deny an application for travel authorization if the applicant leaves the United States while the application is pending.

A green card holder may work for any U.S. employer.

Once a person is approved for a green card, they are eligible to work for any U.S. employer. A green card is much less restrictive than an employment-based visa, allowing a spouse on a green card to pursue a broad range of employment opportunities.

The U.S. spouse must be domiciled in the United States.

At or before the time of the foreign spouse’s entry to the United States as a permanent resident, the U.S. citizen spouse must be domiciled in the United States. This means that the U.S. citizen spouse must consider the U.S. to be their permanent home.

Generally, an immigration officer will require evidence of the U.S. citizen spouse’s U.S. domicile, which may include evidence of a job offer in the United States, of a home owned or leased in the United States, of enrolling children in schools in the United States, and other evidence.

A U.S. citizen spouse living as an expatriate will generally not be successful in applying for a green card for their foreign spouse unless they plan to establish a U.S. domicile no later than the time their spouse enters the United States as a permanent resident.

A green card holder can accidentally abandon their green card.

Once a person receives a green card, they should be very careful not to accidentally abandon their green card by spending too much time outside the United States.

If a green card holder has spent a year or longer outside the U.S., the green card becomes invalid for re-entry to the United States.

If a green card holder has spent 180 days or longer outside the United States, they should expect to receive additional scrutiny from the customs officer to determine whether they have abandoned their U.S. residence. If a green card holder is out of the U.S for 180 or more days during any 12 month period, they should also expect to receive additional scrutiny from the customs officer when they re-enter the United States.

For trips of 180 days or longer, it is possible to apply for a Re-entry Permit, which is a government-issued permission to re-enter the United States after an extended amount of time abroad. This process generally takes 4-7 months, so it is important to plan ahead. If a green card holder is planning extensive travel outside the United States, they should consult with an experienced immigration attorney, as recommendations can only be made on a case-by-case basis.

Conclusion

The green card application process is complex, and there are potential pitfalls that await the unwary. That said, a successful green card application offers significant benefits and can open a new world of opportunities in the United States.

Without discussing the specifics of an individual’s case, it is impossible to give legal advice. For this reason, I recommend that anyone schedule a consultation with an immigration attorney who is experienced in helping people in their situation. The information provided here is only intended as general information and is not a substitute for legal advice.

Did you know? All State Department Employees Ordered Back to Work Today

On December 22nd, the federal government shut down all non-essential, discretionary functions carried out by federal administrative agencies. As the shutdown crosses the one month threshold, there has been significant media coverage of how the shutdown has impacted the immigration courts, as well potential impacts on so-called “dreamers” with DACA status. The impact of this shutdown on employment-based immigrants, including businesspeople, artists, athletes, researchers, and others, has received little publicity. I am posting this analysis to provide additional information on the impacts of the shutdown on employment-based immigrants.

U.S. Department of State: The U.S. Department of State has ordered all direct-hire employees and locally-hired staff furloughed as a result of the government shutdown to return to work effective today, January 22.

The Department of State had previously announced that scheduled appointments to apply for U.S. passports and visas would be held as scheduled. In a January 17 announcement, the Department of State indicated that most personnel operations would resume as of January 22, with some limits on additional expenditures due to budget constraints. See https://www.state.gov/m/2019/288491.htm for details.

This change will likely alleviate delays in immigrant and nonimmigrant visa processing and processing of J-1 waiver requests, although funding constraints may mean that some delays continue until the government is fully funded.

U.S. Citizenship and Immigration Services: Let’s start with some good news. U.S. Citizenship and Immigration Services, or USCIS, is the Federal administrative agency that issues decisions on immigration applications and petitions, including applications for many employment-based visas and green cards, as well as U.S. citizenship applications. Business will resume as usual for most applicants filing with USCIS, as the agency is mainly funded by filing fees rather than annual appropriations.

However, there are a handful of exceptions to this general rule. USCIS also administers the following initiatives, which are funded by federal appropriations. Since these appropriations were not renewed in December 2018, these programs have been impacted. These programs include the following:

• E-Verify. E-Verify is an online service that allows U.S. employers to verify that their employees are authorized to work in the United States. E-Verify is unavailable during the government shutdown. During this time, employers should continue to complete Forms I-9 for all employees.

• EB-5 Investors. The EB-5 investor program allows individuals to invest substantial sums of money in the U.S. economy in exchange for the chance to pursue green card applications. USCIS has indicated that it will continue to process pending applications for EB-5 investors, although it will not accept new green card applications on Form I-485 for EB-5 investors until shutdown ends. Additionally, the Department of State has indicated that it will not schedule additional green card interviews for EB-5 investors until the shutdown has ended.

• Conrad 30 Physicians. The Conrad 30 physician program allows foreign physicians to enter the United States in J-1 status to provide medical care in an underserved area. In general, a physician entering the United States in J-1 status would be required to return to their home country for two years before they would be allowed to apply for another work-authorized status or a green card in the U.S. The Conrad 30 program provides a compromise that allows for better patient care while also providing these physicians with the opportunity to remain in the United States long-term. In return for providing 3 years of service in an underserved area, physicians in the Conrad 30 program are allowed to work in J-1 status without the need to return to their home countries for two years before applying for a green card or another employment-based status. While this program has proven effective, its appropriations lapsed in December 2018, and new applications will not be accepted until the program is funded. While Physicians currently working under the Conrad 30 program will retain their status, physicians hoping to apply for Conrad 30 J-1 status will have to wait until funding is available to continue the program.  

• Non-Minister Religious Workers. Annual appropriations to fund the government generally include funds to extend the Non-Minister Permanent Residence Program. This program allows people in religious occupations the opportunity to apply for permanent residence. USCIS has indicated that any pending non-minister immigrant petition (Form I-360) filed on or before Dec. 21, 2018, will be placed on hold until the program is renewed. In addition, any non-minister I-360 petition received by USCIS on or after Dec. 22, 2018, will be rejected. However, this lapse in funding does not impact temporary R-1 visa applications for religious workers or permanent residence applications for ministers.

• USCIS Ombudsman. The USCIS Ombudsman’s office, which accepts requests to inquire into long-pending matters, is closed during the government shutdown.

U.S. Customs and Border Protection: U.S. Customs and Border Protection (“CBP”) continues to review applications for admission to the United States at ports of entry on the land borders to the United States and at international airport.

However, as of December 21, 2018, CBP’s website is not being actively managed, so information listed there should be considered accurate only as of December 21. CBP has also confirmed that its Administrative Review Office is currently furloughed, meaning that ports of entry are not currently accepting Applications for Advance Permission to Enter as a Nonimmigrant (Form I-192), which allow individuals who are inadmissible to the United States to request permission to temporarily enter the country. The NEXUS program, which allows pre-screened travelers expedited entry to the United States and Canada, has also been furloughed.

U.S. Department of Labor. The Department of Labor is not impacted by the government shutdown, as it is fully funded through September 30, 2019. This means that labor certification applications, labor condition applications, and other applications adjudicated by the U.S. Department of Labor should continue to be processed normally.

Without discussing the specifics of an individual’s case, it is impossible to give legal advice. For this reason, I recommend that anyone schedule a consultation with an immigration attorney who is experienced in helping people in their situation before applying for a visa or travelling to the United States. The information provided here is only intended as general information and is not a substitute for legal advice.

Sincerely,

Vance Berry, Managing Attorney

Can an athlete come to the U.S. on a visitor visa?

A Tailwind Upshot

All those early morning workouts have paid off, and you now have an opportunity to train and compete in the U.S. As the ink dries on your new contract, you wonder — can you come to the U.S. as a visitor, or is this going to be more involved?

Finding the right visa class is like online dating. A quick search can provide a staggering number of options, but how do you sift through the options to determine which is best? In this post, I will clarify when athletes may use visitor visas to enter the U.S. in hopes of avoiding heartache down the line.

Temporary Immigration Options for Athletes

Professional athletes normally use the following types of U.S. visas to train and compete in the United States:

• B-1/B-2 visitor visa

• ESTA (also known as the Visa Waiver Program)

• O-1 visa for individuals with extraordinary ability

• P-1 visa for individual athlete or member or an athletic team

Two of these options, the B-1/B-2 visitor visa and ESTA, are considered “visitor” statuses. Unlike the O-1 and P-1 visas, these visitor statuses do not require the applicant to file an application with U.S. Citizenship and Immigration Service. This makes the process much quicker, less expensive, and more predictable.

Unfortunately, it is not as simple as it may seem for an athlete to come to the U.S. as a visitor. Here’s the rub: U.S. immigration authorities only allow very specific groups of athletes to enter the U.S. as visitors, while others will need to apply for O-1 or P-1 visas.

Visitor Options - B-1/B-2 and ESTA

An athlete can receive a B-1/B-2 visitor visa by filing a visa application at a U.S. Consulate or Embassy outside the United States. A B-1 / B-2 visa allows a person to enter the U.S. for up to 180 days during any given visit.

ESTA makes this process even simpler, allowing an applicant to apply for and receive visitor status online, without the need to schedule an in-person visa appointment. However, ESTA is only available to citizens of certain countries, and it only allows a person to enter the U.S. for up to 90 days at a time.

There are four scenarios in which an athlete may enter the U.S. in a visitor status. These are as follows:

(1) Amateur Engaging in Unpaid Events

Amateurs engaging in unpaid events may enter the U.S. in visitor status. An amateur is defined as anyone who normally performs without compensation, other than compensation for expenses.

For example, a rugby player from Scotland could enter the United States in visitor status to participate in a match in New York City, as long as the only compensation he received was reimbursement for flights, hotels, and other normal expenses.

(2) Professional Receiving Only Prize Money

The ESTA program and B-1/B-2 visas also allow professional athletes to enter the United States if they receive no compensation other than prize money.

For example, if an professional marathoner from Japan enters the United States to compete in the Boston Marathon, and her only compensation will be any prize money she earns from the marathon, she may enter using a B-1/B-2 visa or the ESTA program.

(3) Member of a Foreign Team

An athlete may also enter the U.S. in visitor status as a member of a foreign-based team to coming to compete against another team.

In this case, both the athlete and the team must be based outside the U.S., the income of the team and the players salary must be primarily attributable to events outside the U.S., and the foreign team must either be a member of an international sports league or the event must have an international dimension.

(4) Hockey Player Engaging in Try-Outs

Finally, amateur hockey players who are asked to join a professional hockey team for brief try-outs may be eligible to enter the U.S. using a B-1/B-2 visa or under the ESTA program.

Other Options & Next Steps

If none of these four scenarios match an athlete’s situation, they will most likely not be able to lawfully enter the U.S. in visitor status under the B-1/B-2 or ESTA classifications. Instead, they will need to apply for a work-authorized visa, such as an O or P visa. Watch this space for an upcoming post exploring O and P visa options for athletes.

Every person’s immigration options will be different, and there may be options available beyond those outlined above based on an individual’s unique background. Without discussing the specifics of an individual’s case, it is impossible to give legal advice. For this reason, I recommend that athletes schedule a consultation with an immigration attorney who focuses on athletes before applying for a visa or travelling to the United States. The information provided here is only intended as general information and is not a substitute for legal advice.

I have helped numerous athletes achieve their dreams in the United States, and I would be delighted to help you as you plan the next step in your career. To contact me directly, please fill out the form here.

Vance Berry, Managing Attorney