As immigration agencies implement President Trump’s Jan. 20 “Enhanced Vetting” Executive Order, there is an uptick in reports of noncitizen temporary (nonimmigrant) and permanent (green card) visa holders experiencing delays at the border, tighter security checks based on political content in social media posts and on personal electronic devices, as well as increased detentions, all resulting in longer processing times and/or the inability to enter or return to the U.S. With further visa processing restrictions and vetting procedures on the horizon, Taft expects these reports to continue.

Reported Trump 2.0 Travel Ban Anticipated to Target More than 40 Countries: While the administration has not commented on a new travel ban, it is widely expected, based on a leaked internal memo, that it will prohibit or severely limit citizens of more than 40 countries from entering the U.S. The proposed three-tiered ban includes Red, Orange, and Yellow coded country lists ranging from complete entry bans (Red), to higher scrutiny (Orange), and to having 60 days to address the administration’s vetting concerns (Yellow). The ban is expected to generate global mobility issues for citizens of the targeted countries who are outside the U.S. at the time the ban is announced.

Enhanced Electronic Device and Social Media Searches: Consular visa applications abroad had already been requiring disclosure of social media information. U.S. Customs and Border Protection (CBP) has also had the authority to search electronic devices, including phones, laptops, tablets, and other devices, of U.S. citizens and noncitizens at land crossings, airports, seaports, and even at CBP preclearance locations abroad, such as Dublin and Toronto. Electronic device searches can occur without a warrant. These searches are expected to increase and could result in the delayed ability to enter the U.S., being detained, or being removed from the U.S.

Change in the Waiver of In-person Consular Visa Interviews Abroad – the “Dropbox” rule: Under the new rule, the dropbox/no in-person interview option is now available only to applicants renewing a temporary visa in the same category that expired within the past 12 months (down from the old rule’s 48 months and in any visa category). The resulting high demand for the now required in-person interviews and new heightened visa application scrutiny are expected to cause an increase in visa issuance delays and, thus, to the ability to travel to the U.S.

Increased Vetting and Visa Denials From Mexico and Canada: The U.S.-Mexico-Canada Agreement (USMCA) TN professionals work visa covers engineers, scientific technicians/technologists, and management consultants, in particular. These received enhanced scrutiny and higher visa denial rates even before this year’s trade policy conflicts, especially those from Mexico. A change in the USMCA’s terms or existence will place an additional burden on the ability of Mexican and Canadian nationals to travel to the U.S. on this historically trusted TN visa.

Increased Vetting of Green Card (Permanent Resident Visa) Holders: The administration’s re-establishment of enhanced vetting policies is also expected to impact U.S. green card holders, increasing scrutiny upon arrival from travel abroad and challenging permanent residence intent. Prolonged absence from the U.S., lack of sufficient ties to the U.S., and non-compliance with U.S. tax and criminal laws, among others, had already been grounds for challenging a noncitizen’s permanent resident intent/green card status upon arrival to the U.S.; however, the new vetting policies, including increased digital device seizures, will provide immigration agencies additional means with which to question and revoke green card status and deny entry to the U.S.

Recent TPS Designation Terminations: Temporary Protected Status (TPS) is a humanitarian program allowing noncitizens from designated countries with ongoing conflict, natural disasters, or other hazardous circumstances to reside and work in the U.S. The administration recently announced the termination and partial termination of TPS for Venezuelan and Haitian nationals, two of the largest groups of TPS beneficiaries in the U.S. Any authorization of foreign travel and return to the U.S. based on TPS will no longer be available to these groups unless TPS designations are restored.

Important Considerations Ahead of International Travel

• Noncitizens should avoid non-essential travel outside the U.S., particularly when there are any red flags, they have potentially problematic social media postings or other online presence, or they are citizens of one of the potential countries rumored to be targeted in a new travel ban.
• Noncitizens requiring new consular visa processing while abroad should be prepared for months-long appointment wait times and make alternative plans for the possibility of prolonged absence and the heightened possibility of visa stamping delays and denials.
• Employers should consider submitting work visa status renewals through USCIS and Canadian TN renewals through USCIS or at a Canadian pre-clearance facility.
• Noncitizens and their employer sponsors should not rely on the 15-business day Premium Processing (PP) timeline as increased scrutiny of work visa sponsorships as well as unpredictable pauses in the PP option may derail travel plans.
• Noncitizens traveling to the U.S. should protect and encrypt their electronic device data. Otherwise, admissible green card holders cannot generally be denied entry but may face additional scrutiny when refusing to answer questions about their trip, share passwords, and the like. Temporary visa holders may be denied entry when refusing to answer trip and visa status questions and can have their devices seized.
• When planning international travel, green card holders should avoid prolonged absences from the U.S., continue maintaining strong ties to the U.S., file U.S. tax returns as residents, and timely renew their green cards.

Noncitizens on temporary visas should notify their sponsors well in advance of international travel to assess preparedness for return to the U.S. and associated risks. Employer sponsors and affected individuals should contact the Taft Immigration team for guidance when navigating international travel preparedness.