Employment Immigration Updates
The UHR Compliance and Immigration Services (HRCIS) Office is monitoring the issuance and implementation of White House Executive Orders, legislation, and Trump Administration directives that impact our UVA foreign national population. Please consult this page regularly for updates.
Update: December 4, 2017 - Travel Ban Reinstatement
The US Supreme Court has allowed the travel ban issued on September 24 by the White House to go into effect pending further appeals. That means that citizens of the listed countries are now subject to the travel restrictions identified in the September 24 Presidential Proclamation. The ban does not revoke the immigration status of people from those countries who are already here in the US.
Here is the background of the Proclamation:
On September 24, 2017, the Trump White House issued a Presidential Proclamation titled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or other Public-Safety Threats.” The Proclamation imposes restrictions on travel to the US for citizens of the following countries: Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen, and Somalia. It is important to note that the ban does NOT require individuals from these countries who are already in the United States to depart (they can remain in their existing status); and does NOT revoke visas or travel documents that have already been issued.
The September 24 Proclamation follows earlier Executive Orders which required the Department of Homeland Security (“DHS”) and the Department of State (“DOS”) to review the procedures for admitting foreign nationals into the US. As a result of that review, the DOS and DHS concluded that certain countries have inadequate procedures for providing information to the US regarding:
(1) whether persons applying for entry to the US are who they say they are (“identity management information”); (2) whether persons applying for entry to the US pose a national security or public safety risk (“national security and public safety information”) (3) whether the country itself is a security or safety risk because it is a haven for potential terrorists, is not part of the Visa Waiver program, or because it fails to receive its nationals who have been ordered removed from the US (“national security or public safety risk assessment”)
SUMMARY OF TRAVEL RESTRICTIONS
Depending on the level of “inadequacies” identified by the DHS and DOS, nationals of 8 countries now have differing levels of “travel bans” imposed on them. The following is a chart from the US Department of State of the affected countries, and the types of entries that are restricted:
|Country||Nonimmigrant Visas||Immigrant and Diversity Visas|
|Chad||No B-1, B-2, and B-1/B-2 visas||No immigrant or diversity visas*|
|Iran||No nonimmigrant visas except F, M, and J student visas||No immigrant or diversity visas|
|Libya||No B-1, B-2, and B-1/B-2 visas||No immigrant or diversity visas|
|North Korea||No nonimmigrant visas||No immigrant or diversity visas|
|Syria||No nonimmigrant visas||No immigrant or diversity visas|
|Venezuela||No B-1, B-2 or B-1/B-2 visas of any kind for officials of the following government agencies Ministry of Interior, Justice, and Peace; the Administrative Service of Identification, Migration, and Immigration; the Corps of Scientific Investigations, Judicial and Criminal; the Bolivarian Intelligence Service; and the People’s Power Ministry of Foreign Affairs, and their immediate family members.||No restrictions|
|Yemen||No B-1, B-2, and B-1/B-2 visas||No immigrant or diversity visas|
|Somalia||No nonimmigrant visas**||No immigrant or diversity visas|
*The Proclamation does not specifically reference “Diversity Visas”, although the chart published by the DOS includes Diversity Visas with Immigrant visas. The Diversity Visa program allows issuance of a limited number of permanent resident green cards to individuals who are citizens of countries with historically low levels of immigration into the United States.
**The published DOS chart lists Somalia as a country for which no nonimmigrant visas will be issued. However, the Proclamation makes no such broad statement. The Proclamation states that the DOS will engage in additional scrutiny for nonimmigrant applications from Somalia to ensure that the applicant has no connection to a terrorist organization or otherwise poses a threat.
(Note: Sudan, which was previously on the travel ban list, has been removed. In comparison to the list of countries from the prior Executive Orders, the new list adds two non-Muslim majority countries: North Korea, which has minimal entries to the US, and Venezuela, but only a limited number of certain governmental officials).
Previous court orders allowed individuals from the listed countries to travel to the US if the individual had a “bona fide” relationship with a close family member, or had a bona fide relationship with a US entity (i.e. school, employer, etc). Those exceptions no longer apply.
Currently, travel is now restricted per the terms of the Proclamation for nationals of Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen and Somalia. Designated nationals of these countries cannot travel to the US in any of the immigration statuses listed in the chart above as being prohibited for the particular country, unless (1) they meet one of the “Exceptions to the Travel Restrictions” listed below, or (2) they qualify for a “waiver” allowing travel. The “bona fide” relationship exception will no longer apply, whether it is a bona fide family relationship or a bona fide US entity relationship.
Existing visas are not revoked. Individuals who have valid visas can use the visa to travel.
The DOS has stated that it will not cancel previously scheduled visa application appointments.
All visa applicants from these countries, and individuals who are traveling to the US using existing visas, can expect enhanced questioning by consular officers and by Customs & Border Protection officers at ports of entry.
EXCEPTIONS TO THE TRAVEL RESTRICTIONS
The following individuals are not subject to the travel ban and can continue to travel to the US:
- Foreign national in the US on the effective date of the Presidential Proclamation (regardless of immigration status on that date);
- Foreign national with a valid visa as of the applicable effective date of the Presidential Proclamation for that individual;
- Lawful permanent residents (i.e. “green card” holders) of the US. (This appears to directly contradict language in the Proclamation that “immigrants” are subject to the ban);
- Foreign national admitted or paroled into the US on or after the applicable effective date;
- Foreign national who have a document other than a visa – such as a transportation letter or advance parole document – valid on the effective date;
- Any dual national of one of the listed countries, who is also a national or citizen of a different country not listed, provided the individual is traveling on a passport issued by a non-listed country;
- Foreign nationals traveling on a diplomatic or diplomatic-type visa, NATO visa, C-2 via for travel to the UN, or G-2, G-2, G-3, or G-4 visa;
- Foreign nationals who have been granted asylum to the US; refugees who have already been admitted to the US; or individuals who have been granted withholding of removal, advance parole, or protection under the Convention Against Torture.
Immigration officers (whether consular officer or Customs & Border Protection) may, in their discretion, grant waivers based on the following criteria:
- Denying entry would cause undue hardship;
- Entry would not pose a threat to the national security or public safety of the US; and
- Entry would be in the national interest.
The Proclamation provides the following examples of circumstances that may warrant a waiver, permitting travel to the US:
- The foreign national has been previously admitted to the US for a continuous period of work, study or other long-term activity and is seeking to reenter the US to resume that activity and denying reentry would impair that activity;
- The foreign national has previously established significant contacts within the US but is outside the US on the effective date for work, study or other lawful activity;
- The foreign national seeks to enter the US for significant business or professional obligations and the denial of entry would impair those obligations;
- The foreign national seeks to enter the US to visit or reside with a close family member (e.g. spouse, child or parent) who is a US citizen, green card holder or alien on a nonimmigrant visa and denial would cause the foreign national undue hardship;
- The foreign national is an infant, young child or adoptee, an individual needing urgent medical care, or someone whose entry is otherwise justified by the special circumstance of the case;
- The foreign national has been employed by, or on behalf of, the US government;
- The foreign national is traveling for purposed related to certain international organizations;
- The foreign national is a Canadian permanent resident;
- The foreign national is traveling as a US government-sponsored exchange visitor; or
- The foreign national is traveling to the US at the request of a US government department or agency for law enforcement, foreign policy or national security reasons.
These are not guaranteed “waiver” fact patterns. They are merely examples of fact patterns that “may” warrant a waiver.
Adjudication of Petitions by the U.S. Citizenship & Immigration Services (USCIS)
The Proclamation does not address whether petitions or applications filed with the USCIS by or on behalf of citizens of the listed countries will continue to be processed.
- The Proclamation states that nationals of Iraq who seek entry will be subject to additional scrutiny to determine if they pose risks to the national security or public safety of the U.S.
- Every 180 days the Secretary of Homeland Security, in consultation with other government officials, will submit a report with recommendations to the President, and this list could be “continued, modified, terminated, or supplemented”, including the possibility of adding other countries as deemed necessary
Update: September 5, 2017
On September 5, 2017, President Trump directed the U.S. Department of Homeland Security (DHS) and U.S. Citizenship and Immigration Services (USCIS) to phase out and eventually end Deferred Action for Childhood Arrivals (DACA) over two and half years. As of September 5, 2017:
- USCIS will continue to process all pending INITIAL applications ACCEPTED as of September 5, 2017.
- USCIS will reject all other new INITIAL applications.
- USCIS will continue to process all pending RENEWAL applications that have already been filed.
- USCIS will continue to accept and process RENEWAL applications until October 5, 2017 from applicants whose DACA expires between September 5, 2017 and March 5, 2018. DACA recipients whose DACA has already expired are no longer eligible to renew.
- USCIS will reject all INITIAL and RENEWAL applications received after October 5, 2017.
Individuals with a current, unexpired grant of DACA will continue to hold DACA until it expires. This means that current DACA recipients maintain their protection from deportation and hold valid work authorization until their current EAD card expiration date.
Even though USCIS states that previously granted permission to travel abroad, advance parole, remains valid, U.S. Customs and Border Protection retains the discretion to deny re-entry into the country and it is not guaranteed that DACA recipients traveling with advance parole will be allowed to re-enter the country.
Update: June 26, 2017
On June 26, the Supreme Court of the United States partially lifted prior court prohibitions that had suspended the Trump Administration travel ban. This is an interim action, and the Supreme Court will hear final arguments in October 2017 and make a final decision on the case by December 2017.
In our continuing effort to support and provide guidance to our University community, both foreign nationals and interested and concerned colleagues, we provide the following summary of the most recent change in the current challenging immigration environment:
The Supreme Court indicated 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 are subject to the travel ban.
The definition of a bona fide relationship, and the implementation of the change by the Department of Homeland Security, the State Department, and Department of Justice, is uncertain at this time. However, the opinion did provide examples of valid entity relationships including students admitted into a U.S. institution of higher education, workers who have accepted employment with a U.S. organization, and lecturers invited to address a U.S. audience.
As implementation of the limited ban progresses, HRCIS will post updates and is always available to support and answer general or specific questions about immigration enforcement. Please do not hesitate to contact us.
Update: April 20, 2017
On April 18, 2017, the White House issued an Executive Order 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.
We 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 H-1B petition processing 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, email@example.com, 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.
We recognize that the continuing changes to the immigration environment are challenging for our foreign national community, and we hope that through a combination of accurate information, availability of support resources, and a caring and engaged University community, we can assist in navigating the disruption.
Update: February 24, 2017
Memos on Immigration Enforcement: February 20, 2017
The U.S. 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, TN, F-1 or J-1 visa).
DHS has prioritized certain individuals subject to removal from the U.S.
In order be included on the “removal priority” list, an individual must first be “removable” from the U.S. 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 who has
- been convicted of a crime
- been charged with a crime
- committed an act which would constitute a criminal offense (even if not charged)
- engaged in fraud or misrepresentation in connection with any official matter before a government agency
- abused a program related to receipt of public benefits
- been ordered removed from the U.S. but has not left
- in the judgment of an immigration officer, poses a risk to public safety or national security
The DHS has indicated that it intends to extend “expedited removal” proceedings nationwide, rather than just within 100 miles of a border. People who are unable to show evidence of lawful immigration status in the U.S. can potentially face expedited removal from the U.S. without a hearing. This makes it imperative that individuals carry proof of legal status with them at all times.
- Faculty and staff using temporary visas should carry passports, I-797 approval notices, evidence of health insurance, and printed copies of I-94
- Permanent residents should carry their passports, evidence of health insurance, and green cards
- F-1 students should carry passports, I-20, printed copies of I-94, proof of health insurance, and EADs (where applicable)
- 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
- 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.
Update: February 22, 2017
President Trump said in a recent news conference that he plans to unveil a revised Executive Order on immigration this week and rescind the initial travel ban. The U.S. Department of Justice informed the U.S. Court of Appeals for the Ninth Circuit in the Washington v. Trump litigation: “Rather than continuing this litigation, the President intends in the near future to rescind the Order and replace it with a new, substantially revised Executive Order to eliminate what the panel erroneously thought were constitutional concerns.”
We continue to urge UVA employees with nonimmigrant visas to travel with caution.
Update: February 10, 2017
On February 9, 2017, a three-judge panel from the 9th Circuit of Appeals unanimously ruled that the Temporary Restraining Order suspending the travel ban should remain in place. This means that as of today’s date, citizens of seven countries initially affected by the Order will continue to be able to travel to the U.S. and government agencies affected by the Executive Order should continue to proceed as if it had not been issued.
** Please note: although the Executive Order remains suspended for now, the issue of whether the Order will be held as constitutional by the courts remains largely unsettled. Litigation against the Order continues, and future court rulings could reinstate the ban at any moment. Until we know more information, we advise that students, faculty, and staff from the countries named remain in the United States until the completion of their programs or until they plan to move to their home country permanently. If you absolutely must travel, please contact an immigration attorney before you depart the United States, and continue to carry with you copies of all immigration documents that show proof of valid non-immigrant status.
Update: February 6, 2017
On February 3, a Washington District Court issued a Temporary Restraining Order (TRO), barring the enforcement of the Executive Order. Following entry of the TRO, the State Department declared that it was restoring visas that had been revoked under the Executive Order. The Department of Homeland Security started processing travelers with visas as normal and resumed standard inspection procedures.
Customs and Border Protection directed that nationals of the seven affected countries and all refugees presenting a valid visa or green card be permitted to travel to the United States. Airlines announced that they will allow travelers from the seven nations to board flights. To date, all agencies affected by the Order are proceeding as if the Executive Order had never been issued.
On February 4, the Department of Justice filed an appeal with the Washington Circuit Court seeking to re-instate the Executive Order and once again restrict travel under the Order. The State of Washington joined by the State of Minnesota filed a response to the government’s appeal. We continue to advise anyone that is considering travel outside the U.S. to do so with caution, and seek the assistance of immigration counsel prior to traveling.
Update: February 3, 2017
On January 27, 2017 President Trump issued an Executive Order restricting certain persons from entering the U.S.
What did the recent Executive Order implement?
Individuals who hold passports from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen are suspended from “entry into the United States” for 90 days (and possibly longer). This affects the following people:
- Individuals who hold passports from the countries listed above, and who have applied or want to apply for nonimmigrant visas to enter the U.S.;
- dual citizens who hold passports from one of the listed countries, and
- refugees from these listed countries.
The HRCIS office recommends that individuals from the listed countries, regardless of current immigration status, suspend international travel plans until further notice.* If international travel is absolutely necessary, we recommend consulting an experienced immigration attorney beforehand. HRCIS can provide contact information for individuals interested in consulting an outside attorney.
The language of the Executive Order does not reference domestic travel, however, we suggest that staff, faculty, and employees from the listed countries be prepared for potential delays and enhanced security screenings and scrutiny. We recommend that each individual carry legal documents including:
- a passport
- I-797 Approval Notice (H-1B, TN, E-3, etc.)
- I-94 record
- EAD card if you are currently on OPT, in Adjustment of Status, or an asylee/refugee.
- Permanent residents should carry their passport and Green Card.
The Executive Order does not specifically bar travel for individuals with diplomatic visas (A visas, NATO visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3 and G-4 visas). For now, they may continue to travel and to return to the U.S. without restriction.
*Citizens of the listed countries who are U.S. permanent residents (green card holders) were initially included in the ban. The Department of Homeland Security issued a memorandum confirming that U.S. permanent residents are NOT barred from travel to the U.S. However, the language of the revision stated these individuals would be reviewed on a “case by case” basis. They should expect, at minimum, additional security screening upon entry and delays. There have been reports that green card holders were denied entry when attempting to return to the U.S. over the weekend of January 27-29, 2017. Green card holders from the listed countries should consult an experienced immigration attorney prior to international travel.
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 visa, a letter from your department confirming your employment, and an approved I-797 document
- Carry the phone numbers of HRCIS (434.982.2735) 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.
If I am a citizen of one of the seven countries identified, can I continue to be employed at UVA?
Yes. The Executive Order has no impact on your current employment. If you have current employment authorization through an immigration status, it continues to be valid.
If I am not a citizen of one of the seven countries, is it okay to travel outside the U.S. at this time?
Yes, though you may encounter additional security measures and enhanced scrutiny. It is recommended that employees travel with original approval notices, EAD cards, and a copy of their most recently filed petition. Employees may also wish to ask employing units for a verification of current employment letter.
If I have a petition pending with USCIS or expect to file one in the near future, and I am a citizen of one of the seven countries noted in the Executive Order, will my petition be processed?
The USCIS has clarified that it will continue to process petitions including petitions for individuals from the countries listed in the ban, under normal procedures. At this time, the processing of petitions remains unaffected by the Executive Order.
For questions or concerns about travel advice, the Executive Order, your visa status, or related issues, contact HRCIS: 434.982.2735 or 434.243.2031 (phone), 914 Emmet Street, Michie South Building
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