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U.S. EB-5 Program

Trump's travel ban : what does the supreme court ruling mean to (EB-5) investors ?

3 July 2018

Trump's travel ban : what does the supreme court ruling mean to (EB-5) investors ?
This blog serves as an update regarding the current state of the Trump Administration’s travel ban for foreign citizens of Syria, Iran, Libya, Sudan, Somalia, Chad, Yemen and North Korea, and how it may affect their immigration case processing. On June 26, 2018, the United States Supreme Court issued a final decision in the Trump v. Hawaii case which had challenged the legality of the travel ban against these countries. We are very disappointed to inform you that the Supreme Court upheld the legality of the travel ban, stating that “[t]he Proclamation [the presidential travel ban] is squarely within the scope of Presidential authority under the Immigration and Nationality Act.” This means that the travel ban will remain in full effect unless/until the current or a future President removes the country from the banned list or revokes the Presidential proclamation.
 
**It is important to note that dual nationals of any of the affected countries, using a passport from a non-banned country, are not subject to the travel ban nor are citizens from those countries who already have lawful permanent resident status. Additionally, all existing visas continue to be valid and will not be revoked unless separate grounds of revocation apply. However, these individuals may still encounter issues with their immigration processing nonetheless or with travel in and out of the United States.
 
Individuals Who Are Citizens of a Banned Country Only
 
The travel ban has been in full effect since December 4, 2017 when the U.S. Supreme Court lifted an injunction which had blocked the third version of the Trump administration’s travel ban. This means individuals from these countries are barred from the issuance of their immigrant visa without a waiver.
 
Our office has been monitoring the implementation of the travel ban over the past six months to see how it would be implemented and how it would affect our investors. Under the travel ban, no immigrant visas (including based on an approved I-526 EB-5 petition) will be issued without the individual being granted a waiver. As of today, no formal process or instruction exists in regard to how an individual should apply for a waiver. Even more alarming are reports from Consulates around the world indicating that some individuals have not even been given the opportunity to present a waiver application and are being told they are ineligible for the waiver without presenting the merits of his/her case.
 
To qualify for a waiver, the individual must demonstrate:
 
  • Denying entry during the suspension period would cause undue hardship;
  • Entry would not pose a threat to national security; and
  • Entry would be in the national interest.
 
Reports from Consulates around the world seem to indicate that the U.S. government is very narrowly finding “undue hardship” to the applicant. In fact, it appears that only a very small minority of cases with very extreme and exigent circumstances are qualifying for a waiver under the “undue hardship” standard. Most of the known waivers issued have been for immigrant visas cases involving a family-petition filed by a close U.S. citizen relative such as a spouse or parent of a minor child. Of those cases, the facts presented very compelling undue hardship such as serious medical conditions for the U.S. citizen relative who filed the petition. As of today, it appears that the likelihood of being found eligible to file a waiver, and even more so, for the approval of a waiver is minimal for an EB-5 investor. This article details the unfair adjudication process of travel ban waiver applications: https://slate.com/news-and-politics/2018/06/trump-travel-ban-waiver-process-is-a-sham-two-consular-officers-say.html
 
We recommend that all individuals subject to the travel ban complete and bring a Form DS - 5535, Supplemental Visa Questions to his/her interview in the hope of being able to qualify to file a waiver application: https://www.nafsa.org/_/File/_/amresource/DS5535.pdf. We believe providing this additional background information and offering full transparency can increase the chances of being able to present a waiver application. Many individuals are reporting that any “administrative processing” on the case must be completed prior to a waiver application.
 
If the Consulate does request a waiver either at the interview or post-interview, we would advise that the investor hire our law firm immediately to prepare a waiver package on his or her behalf to provide to the U.S. Consulate. We will be able to provide more guidance regarding this waiver process as we continue to see the implementation of the travel ban and if any fixed procedures are implemented applicable to all U.S consulates.
 
Options for Individuals Subject to the Travel Ban
 
Pending I-526
 
If the investor’s I-526 is currently pending, there is no action which needs to be taken at this time. As the current processing time is between 18-22 months, we can evaluate these cases upon I-526 approval under the current status of the travel ban.
 
Approved I-526/National Visa Center (NVC) Processing
 
Individuals whose I-526 applications have been approved and cases have been sent to the National Visa Center may decide to hold off on NVC processing to see if the current President or a different presidential administration, if elected in November 2020, will lift the current travel ban or remove certain countries from the list. NVC will hold an immigrant visa case as long as we contact them once per year to ask them to keep the case open in a hold status.
 
Consular Interview
 
Applicants who chose to move forward with NVC processing or are already waiting to be set for the consular interview, may choose to contact the Consulate to ask that the interview be placed on hold to see if a new presidential administration will lift the travel ban.

If the applicant moves forward with the Consular interview, we advise that he/she brings a completed DS-5535 form for all adult applicants. The Consulate will likely place the case in administrative processing or make a determination if the applicant may proceed with a waiver application.
 
Visa Refusal
 
Unfortunately, if the visa is refused under the travel ban (or waiver denied) there is no remedy available at this time and no appeal of this decision. We could try to renew the visa application in the future if the travel ban is lifted.
 
Dual Citizens of Banned Countries
 
Dual citizens from a banned country traveling on a different passport are not per se subject to the travel ban. However, we have seen the Consulate require additional vetting for these applicants as well. Applicants who have citizenship or were born in a country subject to the ban should expect that the issuance of their immigrant visas may be delayed, and their cases may be placed on hold for lengthy “administrative processing.” The applicants may also be required to provide the U.S. Consulate with additional background information such as social media handles etc. so that the Consulate can complete its additional vetting. We are advising dual nationals of the banned countries to complete and bring a DS-5535 form to their consular interview in anticipation of this being requested. https://www.nafsa.org/_/File/_/amresource/DS5535.pdf.
 
Please feel free to contact our office should you require any additional information.
 

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