As you know, there were a number of Presidential Executive Orders and directives (“Trump Orders”) issued last week. They involve building a border wall with Mexico and suspending indefinitely the entry of Syrian refugees and not accepting other refugees for 120 days. The Trump Order also impact all visas and green cards, including EB-5s, for nationals of Iran, Iraq, Syria, Libya, Somalia, Sudan and Yemen.

Muslim Ban

The Trump Order issued on Friday, January 27 directs the U.S. government to implement the so called “Muslim Ban.” These policies have been evolving by the hour. Here is what we know so far:

• Nationals from Iran, Iraq, Syria, Libya, Somalia, Sudan, and Yemen with immigrant and non-immigrant visas are barred from entering the United States for 90 days. A “national” includes a citizen or person who holds dual citizenship. People from the 7 countries will not be allowed to apply for new temporary visas until further notice.

• It appears green card holders returning to the U.S will be admitted.  They should be protected by §101(a)(13)(c)  of the Immigration and Nationality Act if the individual is not out of the U.S. over 180 days, and is not a criminal or terrorist, among other criteria.  Additionally, federal judges have issued orders barring removal of people with green cards and immigrant visas.

• Rules may be created barring admission with visas, both temporary and immigrant, for people from other countries that fail to provide certain unspecified information for the U.S. This information is to be used to determine whether individuals seeking immigration benefits are who they claim to be, and do not pose a threat to the U.S. After 60 days, the Department of Homeland Security and the Secretary of State will submit to the president a list of countries that do not cooperate with the U.S. for visa issuance.

• It appears all EB-5 I-526 and I-829s for nationals of the 7 countries will not be decided until further notice. Immigrant visas will not be issued by the Consul to people from the 7 countries. But one can still file an I-526, I-829, adjustment of status, immigrant visa and other applications. They will be worked on and held in abeyance until further notice per a leaked internal USCIS policy email.

Iran 

There are many EB-5 immigrants from Iran. At this time, it appears nationals from Iran may still file I-526 petitions, but they will not be decided, nor will petitioners be issued immigrant visas.  E-2 treaty investor visas will not be issued at this time. We will have to see whether Iran is on the new list of uncooperative countries.

Other Countries

Do our immigration rules bar people who have simply traveled to the aforementioned 7 countries from entering the United States via the Visa Waiver Program (“VWP”) (aka “ESTA”)? In other words, can nationals of ESTA countries, for example Canadian, Japanese, or French citizens, who have visited one of the 7 countries, use ESTA to enter the United States? The answer is that they are not allowed to travel to the United States via ESTA if they have travelled to any of the 7 countries on or after March 1, 2011. However, they may still obtain a visa at a consulate to enter the United States. There are also certain exceptions for members of armed forces, government workers, and others.

EB-5 Immigration

If you have EB-5 investors in your projects, they may be asking questions and possibly seeking a referral. Everyone should wait and see how the new rules develop.  You may want to have a call with your U.S. Senators and make them aware of your concerns.

Visa Delays 

The Trump Order also eliminates the non-immigrant visa interview waiver program.  This program allowed some consuls to issue visa renewals without an interview, such as an H-1B to a professional technology worker seeking a visa renewal at the American consul in India or the UK. (This should not be confused with the ESTA visa waiver program.)  Eliminating this service will cause delays in visa issuance.  Also, keep in mind President Trump issued an order a few days ago barring the federal government from hiring more employees.  Thus, visa issuance timeframes at American Consuls may not be the same as in the past. 

New Rules

New rules are in the process of being developed for many visas. A new proposed Trump Order leaked today directs the government to report on possible changes to H-1B, L-1, E-2 and B-1 temporary visas.