All posts by LAW OFFICES OF CHENG, CHO & YEE

Exceptions to Trump’s Visa Ban

Visa stamp

President Trump signed Presidential Proclamation (P.P.) 10052 on June 22, an extension to P.P. 10014 that temporarily suspended entry into the U.S. for specific types of visa applicants throughout 2020. The ban affected H-1B, H-2B, and L-1 visas, along with J-1 applicants involved in certain programs. However, there are certain exceptions to this visa ban, which are as follows.

H-1B Visa Exceptions

One exception for H-1B visas is for healthcare or public health professionals who are traveling to the U.S., along with researchers who are attempting to mitigate the pandemic or conduct medical research in another area that can help serve the general public. This exception accounts for individuals who are researching areas that may be indirectly tied to the pandemic, such as certain types of health issues that could leave people more vulnerable to COVID-19.

Another exception is for individuals traveling with support in the form of a request from a U.S. government entity or agency to meet certain requirements such as contractual obligations.

H-2B Visa Exceptions

Exceptions for the H-2B visa include individuals who are traveling to the U.S. based on a request from an American government entity or agency, with the intention of fulfilling contractual obligations or foreign policy objectives.

J-1 Visa Exceptions

There are several exceptions in place for J-1 visas, including:

  • Travel with the purpose of caring for minor U.S. citizens, nonimmigrants in lawful status, or LPRs, which may include caring for a child with special needs such as sign language or special education.
  • Intending to provide childcare services for children whose parents are responsible for providing care to patients with COVID-19 or assisting with medical research in an effort to combat the pandemic.
  • Trainees and interns involved in programs that are sponsored by a U.S. government agency, specifically on a Form DS-2019 beginning with “G-3.”
  • Critical foreign policy objectives limited to programs involving exchange visitors who are participating in exchange programs fulfilling time-sensitive and critical objectives pertaining to foreign policy.

L-1 Visa Exceptions

Public health and healthcare professionals, or researchers working to help combat COVID-19, are also allowed entry with L-1 visas. 

L-2, J-2, and H-4 Visa Exceptions

For these visas, there are national interest exceptions for individuals who intend to either follow to join or accompany a principal applicant, who may either be a parent or spouse who qualifies as a national interest exception to P.P. 10052.

If an individual falls under one or more of these exceptions, he or she may be able to gain entry into the U.S. on a designated visa.

Qualifications for an Expedited Interview Appointment

Passport in a bag

In some cases, individuals may qualify for expedited non-immigrant visa (NIV) appointments if they meet certain criteria. The following are some of the qualifications for expedited interview appointments.

Urgent Business Travel

Some individuals may qualify for expedited NIV appointments if they are traveling with the purpose of attending to unexpected and important business matters. Qualifying employees in these instances will need one of the following:

  • A letter of invitation from the specific company requesting travel that explains the urgency of the matter, with an in-depth description of the business and the consequences of a delayed appointment.
  • Available evidence of a required training program taking place within the U.S. of three or fewer months, including descriptive letters from the company and employer responsible for the training.

Denial of ESTA

Citizens of Visa Waiver Program partners who have recently received notice that they are ineligible to visit the U.S. under the program may be able to have their interview appointment expedited. However, the travel must be fast-approaching and the traveler must either have citizenship or have recently visited Iran, Iraq, Syria, or Sudan.

Individuals will need copies of the U.S. Customs and Border Protection message pertaining to their ESTA status.

Medical Requirements

Urgent medical care is another reason why some may qualify for expedited appointments, whether they need it for themselves or for a close relative or employer.

In these cases, individuals will need a letter from their physician with a description of the condition being treated and the reason for seeking treatment in the U.S. They will also require a letter from the doctor or hospital located in the U.S. that indicates that they are sufficiently prepared to provide treatment and accurately estimate the cost. In addition, individuals will need to provide evidence of the payment to prove they can cover the cost of care.

Exchange Visitors and Students

Some people applying for expedited appointments may include those who are visiting the U.S. to engage in studies in the absence of regular visa appointments prior to the start of the program. Students and exchange visitors will need a Form DS-2019 or I-20 that includes the start date of the program within 60 days of starting. Individuals will also need to prove that they covered the SEVIS fee if needed.

Deaths and Funerals

Some qualifying individuals may need to travel to the U.S. to make repatriation arrangements or attend a funeral for an immediate family member. Required documentation will include a letter from a funeral director containing contact details, information about the deceased, and the specific date on which the funeral is to take place. Individuals will also need to provide evidence that the deceased belongs to their immediate family.

If an individual meets these qualifications and can collect and submit all necessary documentation, it may be possible to expedite the NIV appointment.

Public Charge Rule Barred in Illinois

Immigrant green cards

In mid-June, a Seventh Circuit panel upheld the decision to bar a federal public charge rule in Illinois. The new policy from the Trump administration aims to create additional obstacles for immigrants who are seeking green cards while living on food stamps, public benefits, or housing vouchers.

Temporarily Barring the Public Charge Rule

The appeals court’s 2-1 decision temporarily blocked the enforcement of the new public charge rule in Illinois, a rule that made changes to the definition of individuals considered “public charges” in accordance with the Immigration and Nationality Act of 1965. If individuals applying for immigration relied on benefits such as housing vouchers, Medicaid, and food stamps, the rule would give the government the ability to deny green cards and visas to these applicants.

In response to the public charge rule, Cook County elected to sue the Department of Homeland Security along with the U.S. Citizenship and Immigration Services, which will take place in September. The county is suing because it claims that the public charge rule is both arbitrary and discriminatory while deterring immigrants from seeking critical services out of fear of deportation.

In agreement with the county’s decision along with the opinion of the Illinois Coalition for Immigrant and Refugee Rights (ICIRR), U.S. District Judge Gary Feinerman issued a preliminary injunction that prevented the enforcement of the new rule to take place on October 14, a mere day before the planned enforcement of the rule.

The Supreme Court’s Decision

While the federal government requested a stay pending an appeal of Feinerman’s decision, Feinerman denied it, which led to the U.S. Supreme Court to overrule the denial 5-4 in February. In June, Chief U.S. Circuit Judge Diane Wood issued the three-judge panel’s decision, stating that “we conclude that at least Cook County adequately established its right to bring its claim and that the district court did not abuse its discretion by granting preliminary injunctive relief.”

Further explaining the decision, Wood disclosed that the Supreme Court sided with Cook County, explaining that the new public charge rule was flawed and came with certain “predictable collateral consequences” for local and state governments. The court also ruled that the public charge rule developed a certain unreasonable standard for self-sufficiency among immigrants without any statutory basis for it.

Wood also explained that Cook County was likely to suffer a level of irreparable damage because of the rule, writing, “Given the dramatic shift in policy the rule reflects and the potentially dire public health consequences of the rule, we agree with the district court that the public interest is better served for the time being by preliminarily enjoining the rule.”

The decision in June also takes into consideration how the rule will prevent immigrants of all types from seeking or cause them to withdraw from both state-level and federal health care programs. Wood further explained that the rule has caused preventative medicine rates to fall as more immigrants turn to emergency care through the Cook County hospital system, which is uncompensated. As a result of these changes, Cook County would need to cover higher costs, and there would be an increased risk of the spread of communicable diseases across the country.

Cook County is not alone in wanting to block the new public charge rule. The Trump administration’s new rule has also been challenged across the country from San Francisco to New York City over the past eight months. The decision in June only pertained to the upholding of the preliminary injunction enjoining enforcement of the rule in the state of Illinois.

Dissenting Opinion on the Public Charge Rule

The only dissenter of the circuit court ruling in Cook County, Trump appointee U.S. Circuit Judge Amy Barrett, found that the county’s definition of “public charge” didn’t match the legal definition. Barrett also claimed that the emphasis on mass withdrawal from various benefit programs made the scope of the new rule seem larger than it actually is.

To support her claim, Barrett wrote a 40-page dissent that stated that while immigrants are withdrawing or avoiding public benefits because of fear around the effects of the public charge rule, individuals entitled to these benefits won’t be subject to the new rule. Specifically, she wrote that “contrary to public perception, the force of the rule does no fall on immigrants who have received benefits in the past.” Instead, she claims, the rule applies to nonimmigrant visa holders who may be eligible for benefits at a later time if they are approved for green cards.

Based on the ruling, the public charge rule will be temporarily blocked in Illinois, which may help reverse some of the harm it’s already caused and encourage immigrants to enroll or remain in benefit programs.

Which Visa Services Can Immigrants Receive During COVID-19 Pandemic?

Cartoon of a man stamping approved on a visa application

The COVID-19 pandemic caused an abrupt halt to many visa services, however, in the past month many of these services have resumed. Individuals wishing to work or study in the United States should closely monitor the latest updates from the US Department of State and contact a Chicago immigration lawyer to determine the best way to proceed with their visa application. It is important to note that while some visa programs have been suspended, the current restrictions do not affect the visa waiver program.

Visa Services That Have Resumed

The US Department of State is slowly resuming the processing of routine immigrant visas and non-citizen visas. This includes travelers who have urgent needs in the United States, students who have F-1 and M-1 visas. They are also processing some J-1 visas for exchanges. Additionally, immigrant visas for family members of US citizens are being processed as are some E and B1 visas.

Of course, people are concerned about contracting COVID-19 when dropping off visa documentation or for interviews. The US Department of State has issued guidelines to all consulates and embassies to help minimize this possibility. This includes social distancing in waiting areas, staggering interviews to minimize potential contact with infected individuals, and frequent disinfection of common areas. 

National Interest Exemption

Some travelers to the United States may qualify for a National Interest Exemption (NIE). This is in line with Presidential Proclamation 9993 that previously prevented travel to the United States from Schengen countries. Individuals who may qualify for an NIE include public health professionals, students, academics, investors, technical experts, specialists, senior-level managers, executives, professional athletes, and their dependents and essential staff. Investors may also qualify in some circumstances. Further, some consulates are processing visa applications for diplomats and officials of international organizations, as well as medical professionals responding to the COVID-19 pandemic, as well as aircrew with C1 or D visas.

A Fluid Situation

The global pandemic is creating a fluid, and ever-evolving situation for immigrants. The current phased resumption of routine visa services is contingent upon the conditions prevalent in the country where each embassy or consulate is located. In countries where infection rates remain high or are climbing, most embassies and consulates continue to provide limited visa services. At present, there is no set timeline for when the resumption of regular services will occur, nor is there a definitive timeline for when the pre-pandemic pace of visa processing will occur. 

As such, it is vital for all visa applicants to continue monitoring the website of the nearest US embassy or consulate. In particular, individuals should pay close attention to when appointments are available and any changes to required documentation. Each embassy and consulate has been given broad discretion to determine when it is safe to resume normal visa processing activities. This means that the services available in one country today, may not be available in another country for weeks or potentially months from now. 

Visa Scams are Common 

Scammers are eager to make a quick buck during the present pandemic. Individuals wishing to come to the United States should be extremely cautious when approached by individuals promising quick and easy processing of their visas. Con artists are active in countries around the world preying on the needs and fears of immigrants hoping to make their way to the United States, or hoping to extend an existing visa.

Individuals should never provide personal information to these individuals, nor should they pay any “fees” for the services offered. The US State Department routinely warns applicants of these scams and has seen a proliferation of visa schemes over the past few months. Moreover, applicants can expect their visa application will receive considerable scrutiny at this time. Thus, it is imperative that all information is accurate and submitted with the required supporting documentation.

Furloughs May Still Occur

Early in the pandemic, the US Department of State issued warnings that furloughs may become necessary as the pandemic progresses. This is because the USCIS derives much of its funding from the processing of visas. Furloughs were postponed until the end of August. While it does appear that the USCIS will have enough funding to cover the loss of revenue due to declining applications, the possibility of furloughs is still on the table. If this occurs, it could significantly increase the visa processing time. Current estimates indicate that up to 14,000 USCIS personnel may be furloughed for an indefinite period.

Legislators in Washington are attempting to include additional funding for USCIS as part of a coronavirus relief package to prevent any furloughs. However, this package is currently stalled and it is unlikely that it will be passed before the end of August. This means that applicants should gather their necessary documents and submit their applications as soon as possible.

Trump Temporarily Halts New H1-B and Other Job Visas

Two passports with a custom stamp

President Trump has recently suspended H-1B and other types of visas, a move that many businesses are opposing because of the prevention of recruiting foreign talent from abroad.

The Executive Order Blocking Work Visas

In late June, Trump signed an executive order barring as many as hundreds of thousands of workers from other countries from entering the U.S. workforce. The effort comes as part of the Trump administration’s attempt to limit immigrant entry into the U.S.

The order will be in effect at least until the end of 2020, and it blocks visas for many types of jobs, including jobs in computer programming and other positions open to skilled foreign workers, many of whom enter the U.S. on H-1B visas. The order also affects other individuals including students visiting the U.S. while engaged in work-study programs during the summer, seasonal workers employed in the hospitality industry, and other au pairs who work in the U.S.

In addition to preventing immigrants from entering and working in the U.S., the order also prevents American companies with international operations and international enterprises with U.S. locations from transferring employees to the U.S. for periods of months to years. Under the new order, the spouses of foreign workers employed in the U.S. are also blocked.

Opposing the Order

President Trump described the suspension of H-1B and other visas in the order as a means to help put American workers first when filling positions for scarce jobs, which immigration advocates claim doesn’t account for an evolving, dynamic workforce.

Business leaders have also been quick to oppose the order, saying it will prevent them from recruiting vital workers from abroad for positions that many American workers are either unwilling to perform or incapable of performing. 

U.S. Chamber of Commerce chief executive Thomas J. Donohue told the New York Times, “Putting up a ‘not welcome’ sign for engineers, executives, IT experts, doctors, nurses and other workers won’t help our country, it will only hold us back.”

Attempts to block the order failed to prevent it from going into effect.

The order comes as the Trump administration has worked to slow immigration into the U.S. in the long-term. In April, Trump signed a previous order that suspended the issuance of green cards for 60 days to a majority of foreigners who wished to live in the U.S. The new order extended that restriction while also blocking individuals with work visas.