Hi

It has been a very momentous week as Americans and the rest of the world have tried to make sense of the ramifications of one of Trump's executive orders on immigration, which had the effect of banning all citizens from 7 countries, namely Iran, Iraq, Syria, Libya, Sudan, Somalia, and Yemen from traveling to the U.S. with non-immigrant or immigrant visas. The executive order created immediate chaos and hardships for visa holders from the seven affected countries.

Americans who recognize the valuable contributions to our country of immigrants of all faiths have protested in the streets, at airports, and online. Immigration attorneys and other advocates of immigrants have argued before the Department of Homeland Security, Customs and Border Protection, and the State Department, and approximately 60 different cases have been filed in Federal Courts across the U.S., arguing that these executive orders violate the Equal Protection Clause of the 14th Amendment to the Constitution and U.S. immigration laws. The Attorney General, Sally Yates, refused to defend the executive orders and was fired by Trump for not following orders to defend the executive orders. In perhaps the most amazing act, U.S. consular officers, often known for being callous and indifferent toward immigrants and visitors, submitted a memorandum of dissent to State Department headquarters arguing that the ban was inhumane, contrary to modern American values of tolerance and inclusion, would spark international outrage against the U.S., and would work contrary to the U.S.'s security interests. Over the course of the week, Federal Courts have blocked enforcement of the ban pending further litigation on the matter.

Where do we stand now? Since the first two days of the ban, the Department of Homeland Security ("DHS") acknowledged that permanent residents from the seven banned countries can enter without interference. Over the past week, immigrant and non-immigrant visa holders from the seven banned countries had their visas provisionally revoked. Then, certain categories of visa holders, like former Iraqi translators, had their visas reinstated by the State Department. Federal Courts across the U.S. issued injunctions that temporarily barred enforcement of the executive order to certain classes of visa holders who were covered in the lawsuit, and so those visa holders had the validity of their visas restored. The lawsuit with the broadest coverage was filed in the Federal District Court for the Western District of Washington. Federal Court Judge James Robart imposed an injunction barring further enforcement, pending further litigation of the case, and the Ninth Circuit Court of Appeals upheld the injunction. Now, the validity of the visas of many visa holders has been restored temporarily, and so they are rushing to enter the U.S. just in case the Trump administration would ultimately win the court case and the ban would be reimposed.

If the Trump administration loses the court case, then they will be forced to scale back their approach to just performing heightened screening of visa holders and applicants from the seven previously banned countries, which then might be expanded to other countries in the future. If the Trump administration wins, then it will reimpose the ban on citizens of the seven banned countries, and it might expand the ban to other countries in the future. However, the Trump administration will probably lose because when Federal Courts are presented with an allegation that that a law, policy, executive order, etc., is discriminatory toward a specific racial, ethnic group, religion, or gender, and thus violates the Equal Protection Clause of the 14th Amendment to the Constitution, then the court must consider whether the government's policy goal could be accomplished with a narrower and less discriminatory approach. When it can be shown that the same goal of increasing security could be accomplished through heightened scrutiny of applicants rather than a blanket ban, and, when the ban does not even cover countries from which terrorists who actually attacked the U.S. came, and, thus, is not as likely to reach potential wrongdoers, then the court will probably strike down the executive order for being overbroad and, hence, unconstitutional. 

Otherwise, the processing of EB-5 I-526 and I-829 petitions for citizens of all countries has continued without interruption. Consular processing of immigrant visas was suspended for citizens of the 7 banned countries until the Federal Court injunction. For the reasons explained above, Trump's executive order creating the seven-country ban will most likely be struck down as unconstitutional, and so consular processing of immigrant visas for EB-5 investors from the seven banned countries will resume as before. We will keep you posted as events unfold.

Sincerely,

Anthony Olson

Attorney