International Students & Scholars Program, U.Va.

International Students & Scholars Program

A Division of the International Studies Office

Scholarship
Community

INFORMATION ON IMMIGRATION ENFORCEMENT AND TRAVEL

July 3, 2017

Replaces Information on Immigration Enforcement and Travel from 4/21, 3/17, 3/7, 2/23, 2/10, 2/6, 2/5, 2/3, 2/1, 1/30, and 12/6/17.

The International Studies Office (ISO), Office of the General Counsel, University Human Resources, the Office of the State Attorney General, and State appointed outside counsel on immigration are closely monitoring interpretation, revision, and implementation of the recent Executive Orders on immigration and travel and related court decisions.

ISO staff are also in regular communication with Student Affairs, colleagues at other universities, and NAFSA: Association of International Educators. While we will attempt to keep this document updated, because this is a rapidly developing situation you should consult other resources (see suggestions at the bottom of this page) and call us directly for the most recent information, +1 434 982 3010 (24/7)

This document contains general information only, and is not intended as legal advice to any individual.  Legal advice can be provided only by an attorney directly representing an individual client.  If you need legal advice, the International Studies Office may be able to help refer you to one.

......................................................................................................................................

June 26, 2017: The U.S. Supreme Court issued an order granting certiorari review of the constitutionality of the Executive Order (“EO”) 13780  issued by the White House in March banning travel to the United States for citizens of certain Muslim-majority countries.  The Supreme Court will hear arguments in October, with a final decision likely by December.

In its order of June 26, 2017, the U.S. Supreme Court also made some changes to the nationwide injunction which had suspended EO 13780 to this point. The order partially re-instates parts of EO 13780 sometimes referenced as the “travel ban” for foreign nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen. 

In its June 26th order, the Supreme Court said that the EO banning travel 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.”  Other foreign nationals from the listed countries (Iran, Libya, Somalia, Sudan, Syria, and Yemen) are subject to the travel ban.

The Supreme Court went on to give examples of what qualifies as “bona fide relationships”:

 “The facts of these cases illustrate the sort of relationship that qualifies. For individuals, a close familial relationship is required. A foreign national who wishes to enter the United States to live with or visit a family member, like [a] wife or [a] mother-in-law, clearly has such a relationship. As for entities, the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading EO–2 [the March EO]. The students from the designated countries who have been admitted to the University of Hawaii have such a relationship with an American entity. So too would a worker who accepted an offer of employment from an American company or a lecturer invited to address an American audience.  Not so someone who enters into a relationship simply to avoid §2(c): For example, a nonprofit group devoted to immigration issues may not contact foreign nationals from the designated countries, add them to client lists, and then secure their entry by claiming injury from their exclusion.”

The impact of this ruling is this:  Colleges and universities should consider taking additional steps to document the bona fide relationship with (1) international students from the listed countries traveling to the US to attend school or to resume studies, (2) faculty and staff who are traveling to begin work or to resume work after foreign travel, and (3) individuals invited to campus to give specific presentations, lectures, performances, etc. This additional documentation should include:

     For International Students:  A letter from the registrar confirming that the student has been admitted to the college or university, and confirming the date that the academic program will commence.  The student should also have a valid I-20, and if enrolled for the coming semester, a course listing of classes they will take. Students should carry these documents along with their passport,  printed copy of their I-94, and proof of health insurance. OPT candidates should also carry their EAD and Job Offer Letter.

     For Faculty and Staff:  A letter from the institution’s international office or other authorized individual confirming that the faculty/staff member is employed by the institution and is coming to the US to undertake (or resume) employment.  If there is an employment contract or appointment letter, the individual should carry that as well, and copies of recent paystubs (for existing employees). 

     For Invited Lecturers or Presenters:  A letter of invitation from the institution formally inviting and outlining the terms of the presentation, lecture, performance, etc. and any remuneration that will be provided in terms of honorarium and/or reimbursement of expenses.

There is no guidance (yet) regarding what types of evidence will suffice to allow individuals impacted by the EO to travel.  The key is to document that there is a verifiable relationship between the institution and the individual.   

It is also important to note exactly who is subject to the EO.  There are many categories of individuals from the listed countries who are NOT subject to the EO at all.  Below is a summary of the travel ban:

TRAVEL BAN SUMMARY
On March 6, 2017, the White House issued a new Executive Order which imposed travel restrictions on nationals of certain Muslim-majority countries.  The Executive Order (“EO 13780”) suspended entry into the United States for 90 days (and possibly longer) by nationals from the following six countries: Iran, Libya, Somalia, Sudan, Syria, and Yemen. Iraq was on the earlier January travel ban, but was removed from the list in the March travel ban. 

The EO prohibits entry to the US of the nationals of those countries who:

 (i)   are outside the United States on the effective date of this order;

(ii)   did not have a valid visa at 5:00 p.m., eastern standard time on January 27, 2017; and

(iii)  do not have a valid visa on the effective date of the order [the original EO was effective on March 16, 2017; however the president recently issued a directive making the order effective on the date the injunction is lifted:  June 26, 2017].

Existing visas are not cancelled.  People from the listed countries with valid visas prior to the dates noted above are permitted to travel.

The EO also suspends refugee processing for 120 days, and suspends refugee travel to the U.S. for 120 days, unless travel was already scheduled by the Department of State.  The EO reduces the number of refugees the US will admit from 100,000 to 50,000. 

 Exceptions to travel prohibition for nationals of these countries
The following individuals are not subject to the travel ban:

(i)    any lawful permanent resident of the United States (i.e. a green card holder);

(ii)   any foreign national who is admitted to or paroled into the United States on or after the effective date of this order;

(iii)  any foreign national who has a document other than a visa, valid on the effective date of this order or issued on any date thereafter, that permits him or her to travel to the United States and seek entry or admission, such as an advance parole document;

(iv)   any dual national of one of the listed countries as long as the individual is traveling on a passport issued by a non-listed country;

(v)    any foreign national traveling on a diplomatic or diplomatic-type visa, North Atlantic Treaty Organization visa, C-2 visa for travel to the United Nations, or G-1, G-2, G-3, or G-4 visa; or

(vi)   any foreign national who has been granted asylum; any refugee who has already been admitted to the United States; or any individual who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture.

Waiver Process
The Executive Order permits “waivers” on a case-by-case basis.  That is, if a person otherwise would be banned, the person can apply for a waiver of the ban.  The waiver process can allow the issuance of visas or other immigration benefits to nationals of the 6 countries if the foreign national demonstrates to a consular officer's satisfaction (1) that denying entry would cause undue hardship, and (2) that his or her entry would not pose a threat to national security and (3) the person’s entry would be in the national interest.  No details have been provided on the waiver process.

Additional Issues for Individuals with ties to the Listed 6 Countries

  • There is no indication in the memo that the CIS has suspended or will suspend adjudication of petitions or applications for immigration benefits filed by or on behalf of individuals from the listed 6 countries. DHS has specifically confirmed that US CIS will continue normal processing of Applications for Naturalization (Form N-400) and Applications to Adjust Status (Form I-485) filed by citizens of the 6 listed countries.
  • Nationals of the 6 countries who are currently in the U.S. in valid immigration status will not see their status terminated or otherwise affected, even though they may not be permitted to reenter the U.S. after foreign travel. 

Refugee Issues
There was also an injunction suspending certain portions of the EO impacting refugee admissions.  Regarding refugees, the Court stated:  “An American individual or entity that has a bona fide relationship with a particular person seeking to enter the country as a refugee can legitimately claim concrete hardship if that person is excluded. As to these individuals and entities, we do not disturb the injunction. But when it comes to refugees who lack any such connection to the United States, for the reasons we have set out, the balance tips in favor of the Government’s compelling need to provide for the Nation’s security.”  

As a result, the Court limited the refugee ban as follows:  The EO “may not be enforced against an individual seeking admission as a refugee who can credibly claim a bona fide relationship with a person or entity in the United States. [And] such a person may not be excluded …. even if the 50,000 person cap has been reached or exceeded. As applied to all other individuals, the provisions may take effect.”

Travel
The ISO recommends that individuals from Iran, Libya, Somalia, Sudan, Syria, and Yemen carefully consider international travel plans until further notice.  If international travel is necessary, an experienced immigration attorney should be consulted. If abroad, citizens of the listed countries should consult with the local U.S. diplomatic mission before attempting to travel to the U.S.

The language of the Executive Order does not reference domestic travel, but out of an abundance of caution, we suggest that students and scholars from the listed countries be prepared for potential delays and increased security screenings.  We recommend that they carry their legal documents including passport, I-20 or DS-2019, I-94 record and EAD card if currently on OPT.  Permanent Residents should carry their passport and Green Card. 

Citizens of Iraq should also expect more extensive screening and delays at ports of entry.

Any traveler who has visited one of the listed countries, who is a green card holder and comes from one of the listed countries, or who is a dual citizen with one country of citizenship being a listed country should be prepared for increased scrutiny at U.S. entry points for the foreseeable future.

Changes to visa issuance policy affecting all non-U.S. citizens
The executive order eliminated the ability for certain people renewing a nonimmigrant visa to skip the interview process.  In the past, some applicants for nonimmigrant visas were able to skip an in-person interview at the Consulate if they were applying to extend an existing visa.  Under the Executive Order, the circumstances under which a waiver of the interview may be granted are now more limited. 

The State Department has confirmed that the interview waiver program still applies to applicants aged 14 and under and 79 and older.  They have also confirmed that it still applies to applicants who were issued visas that expired less than 12 months ago in the same category as they are currently seeking.  Individual consulates always reserve the ability to require an interview, even for individuals otherwise eligible for a waiver of the interview.  Travel plans should be made accordingly. 

Possible Expansion of List of Countries Subject to Travel Restrictions
It is possible that the list of countries impacted by Executive Order issued on March 6, 2017 could be expanded in the future. For this reason, the ISO recommends that all students and scholars check the DHS and Department of State web sites for updates, confer with the ISO, and regularly turn to reliable sources of news if they are considering international travel.

Contact the ISO (+1 434 982 3010, Minor Hall 208) if you have questions about travel, the Executive Order, your visa status, or related issues.

Complete Text of New Executive Order Execute Order Protecting The Nation From Foreign Terrorist Entry Into The United States, 3/6/17

U.S. Dept. of State Bureau of Consular Affairs Alert - Announcement Executive Order Visas - 3/617

FAQ on EO of 3/6/17 - Provided by Attorney Mark B. Rhoads, McCandlish Holton Morris, Counsel on Federal Immigration Law

U.S. Immigration Definitions

Memos on Immigration Enforcement:  February 20, 2017
The US Department of Homeland Security (DHS) issued two Memos relating to immigration enforcement.

Implementing the President’s Border Security and Immigration Enforcement Improvements Policies

Enforcement of the Immigration Laws to Serve the National Interest

Students, scholars, faculty and staff who are foreign nationals should pay close attention to these agency directives as they can directly affect you. This includes permanent residents (green card holders) as well as temporary non-resident immigrants (holders of a visa such as an H-1B, E3, O-1, F-1 or J-1 visa).

  • DHS has prioritized certain individuals subject to removal from the US.
  • In order be included on the “removal priority” list, an individual must first be “removable” from the US.  Those who qualify as “removable” include anyone who has violated his/her legal status* in any way, through non-compliance with their visa type or immigration status.  For example, F-1 student visa holders who drop below required course loads without ISO authorization, or who work without authorization can be considered removable. 

Faculty/staff who fall out of legal status (even inadvertently) or overstay the end date on the I-94 record render themselves removable.

In order to avoid being placed in removal proceedings, it is critical that international students, scholars, faculty, and staff  maintain their legal status in the United States at all times. This also applies to dependents.

*Legal status: compliance with conditions of visa type/immigration status.

  •   The “priority removal” list includes:

-Anyone convicted of a crime
-Anyone charged with a crime
-Anyone who has committed an act which would constitute a criminal offense (even if not charged)
-Anyone who has engaged in fraud or misrepresentation in connection with any official matter before a government agency
-Anyone who has abused a program related to receipt of public benefits
-Anyone who has been ordered removed from the US but has not left
-Anyone who, in the judgment of an immigration officer, poses a risk to public safety or national security
 

  • The DHS has indicated that it will seek to extend “expedited removal” proceedings nationwide, rather than just within 100 miles of a border.  If this occurs, people who are unable to show evidence of lawful immigration status in the US could potentially face expedited removal from the US without a hearing.  This makes it imperative that individuals carry proof of legal status with them at all times. 

-F-1 students should carry passports, I-20, printed copies of I-94, proof of health insurance, and for OPT, EADs and Job Offer letters.
-J-1 students and scholars should carry passports, DS-2019, proof of health insurance, and printed copies of I-94
-Students on other visa categories should carry passport, proof of health insurance, and printed copies of I-94
-Faculty and staff using temporary visas should carry passports, I-797 approval notices, and printed copies of I-94
-Permanent residents should carry their passports and green cards.
-Enter the U.S. in the correct visa status. Do NOT use your tourist visa.
-Photocopy all documents required to prove legal status and keep at least one set in a secure location.

  • DHS has been directed to hire 10,000 new Immigration & Customs Enforcement (ICE) officers, and 5,500 new Customs & Border Protection officers.  With the anticipated increase in new hires, foreign nationals must be prepared to demonstrate their legal status at any time.

Additional Executive Orders and Memos on Immigration and Travel
ISO and partner offices will update this Information Sheet and FAQ and communicate with members of the international community if and when any new Executive Orders or DHS Memos on immigration and travel are published.

What should you do if you are detained at the airport?
Immigration officers have always had broad discretionary powers to determine admissibility to the U.S. Make sure you have all of your legal documents: a passport valid for 6 months beyond the date of entry, a valid F or J Visa, an I-20 or DS-2019 signed within the last 6 months for travel, printed copies of I-94, proof of health insurance, and EADs and Job Offer Letter (OPT candidates).

Carry the phone numbers of the ISO and of your embassy when you travel. If you are detained, call our office when it is possible to do so, or have the immigration officer or your embassy contact us on your behalf. The main ISO office line is available 24/7: +1 434-982-3010. You always have the right to contact your embassy.

Review of the H-1B Visa Program
On April 18, 2017, an Executive Order was issued by the White House entitled “Buy American Hire American”.  While the Order did address the H-1B visa program, it did not include provisions that would substantially impact the existing program, or the current beneficiaries of H-1B visa status at the University.

University Human Resources Compliance & Immigration Services staff expect that the primary impact of the Order will be in the form of enhanced scrutiny of H-1B applicants for visas at U.S. embassies and consulates, resulting in increased processing times,  and a further slowing of processing of H-1B petitions by USCIS.  Additionally, as a result of the Order, Universities may experience increased enforcement activity in the form of site visits by USCIS officers. 

Please do not hesitate to contact HR Compliance and Immigration Services, immigration@virginia.edu, with questions about the new Executive Order, particularly if you are planning travel abroad, or during preparation for submission of a request for H-1B status sponsored by the University. 

UHR Compliance & Immigration Services staff recognize that the continuing changes to the immigration environment are challenging for our foreign national community and hope that through a combination of accurate information, availability of support resources, and a caring and engaged University community, they can assist in navigating the disruption.

What resources are available to me at the University of Virginia, and where can I go for more help and information?

·         The International Studies Office, 434-982-3010, available 24/7

·         The Office of the Dean of Students: 434-924-7133; Dean on Call for emergency assistance on weekends and after hours: 434-924-7166

·         Just Report It, to report incidents of bias, hazing, or sexual or gender-based violence: http://www.virginia.edu/justreportit/

·         Counseling and Psychological Services (CAPS), 434-243-5150; for after hours and weekend crisis assistance: 434-297-4261

·         Multicultural Student Services & the Multicultural Student Center, Lower Level of Newcomb Hall. Programs and services to empower students in their identity, build community, and provide holistic support for diverse students.

·        Office of Human Resources Compliance and Immigration Services, 434-982-0123.

Other Resources

1. Turn to reliable sources for information, including the ISO, and major newspapers and news outlets (e.g., Washington Post, New York Times, Wall Street Journal, NPR, BBC America).

2. The ACLU has a wealth of information about your civil rights on their website. Check out their information on your basic rights here.

3. American Immigrations Lawyers Association website.

4. Statement from Virginia's Secretary of Education - 2/3/17

5. UVA President, Provost Address Immigration Issues - 1/29/17

6. UVA Faculty Senate-General Faculty Council Statement on Immigration Executive Order - 2/1/17

7. FAQ on EO of 3/6/17 - Provided by Attorney Mark Rhoads, McCandlish Holton Morris, Counsel on Federal Immigration Law.

8. Office of the President Timeline of UVA Events Before and After the Executive Orders