Tag: travel

Nonimmigrant Visa Applicants May Have Longer Waits

President Donald Trump has issued an executive order striking the 80-percent/three-week goal for interviewing nonimmigrant visa applicants following submission of applications.

Since September 11, 2001, the State Department has given priority to security over quick visa adjudications. For many reasons, including heightened security, between 2001 and 2010, the U.S. share of the global tourism market had dropped markedly. The Obama Administration, concerned about the effect on the U.S. economy, took measures to “support a prosperous and secure travel and tourism industry in the United States.” The first steps were in 2010, when the National Export Initiative and the Travel Promotion Act became law. They mandated intergovernmental cooperation to work to establish a stronger brand identity for the U.S. and to promote exports. By 2012, President Barack Obama issued an executive order to continue the process of fostering more tourism and travel: Establishing Visa and Foreign Visitor Processing Goals and the Task Force on Travel and Competitiveness Order. One section ordered Consulates to “ensure that 80 percent of nonimmigrant visa applicants are interviewed within three weeks of receipt of application, recognizing that resource and security considerations . . . may dictate specific exceptions[.]”

Although the Obama EO contained a security waiver, on June 21, 2017, Trump signed his own EO, striking the 80 percent/three-week goal. This is being done in conjunction with the travel ban partially reinstated by the U.S. Supreme Court and the extreme vetting procedures instituted by Secretary of State Rex Tillerson.

Pursuant to extreme vetting, if deemed necessary to determine eligibility, visa applicants may be asked to supply:

  • Travel history during the last 15 years, including source of funding for travel;

  • Address history during the last 15 years;

  • Employment history during the last 15 years;

  • All passport numbers and country of issuance held by the applicant;

  • Names and dates of birth for all siblings;

  • Names and dates of birth for all children;

  • Names and dates of birth for all current and former spouses, or civil or domestic partners;

  • Social media platforms and identifiers, also known as handles, used during the last five years; and

  • Phone numbers and email addresses used during the last five years.

Assessing this amount of information and data obviously will take time. A White House spokesman stated that the elimination of the “arbitrary” three-week goal was needed because “[t]he president expects careful, accurate vetting of visa applicants, not a rushed process . . . .”

Business groups already troubled about possible deleterious effects from the travel ban and extreme vetting have expressed concern about additional delays in visa issuance. According to State Department’s own data, the nonimmigrant visa issuance rate has been dropping. In March, 907,166 were issued and the number was down to 735,000 in April.

This post was written by William J. Manning of Jackson Lewis P.C.

Restrictions on Personal Electronic Devices, including Laptops, on Flights from 10 Airports

No personal electronic devices (PEDs) larger than a cellphone or smartphone, such as a laptop computer or e-reader, can be carried into the cabin of airplanes flying directly to the U.S. from 10 airports in the Middle East, North Africa, and Turkey, the DHS and TSA announced on March 21, 2017.

Following are the airports:

  • Abu Dhabi International Airport, Abu Dhabi

  • Dubai International Airport, Dubai

  • Cairo International Airport, Egypt

  • Queen Alia International Airport, Jordan

  • Kuwait International Airport, Kuwait

  • Mohammed V Airport, Casablanca, Morocco

  • Hamad International Airport, Qatar

  • King Abdul-Aziz International Airport, Jeddah, Saudi Arabia

  • King Khalid International Airport, Riyadh, Saudi Arabia

  • Ataturk International Airport, Istanbul, Turkey

The carriers involved will have 96 hours, until early in the morning of March 25, to comply with this directive.

No American carriers are affected because none have direct flights to the U.S. from the 10 airports. Based on itineraries, the following carriers have been notified and will be affected:

  • Egypt Air

  • Emirates Airways

  • Etihad Airways

  • Kuwait Airways

  • Qatar Airways

  • Royal Air Maroc

  • Royal Jordanian Airlines

  • Saudi Arabian Airlines

  • Turkish Airlines

All passengers will be subject to these restrictions, including U.S. citizens, regardless of Trusted Traveler Status. Approved medical devices will be allowed on board, but only after additional screening is conducted. TSA advises passengers with connections through one of the 10 airports to place large electronic devices into their checked baggage at their originating airport.

The DHS states that it has put these restrictions in place because “[the agency’s] information indicates that terrorist groups’ efforts to execute an attack against the aviation sector are intensifying . . . .” These restrictions will remain in effect indefinitely “until the threat changes.” TSA emphasizes that it “continually assesses and evaluates the current threat environment and adjusts security measures as necessary to ensure the highest levels of aviation security without unnecessary disruption to travelers.”

In addition to the new PEDs process, all travelers to the U.S. should be prepared for the possibility that their electronic devices might be “detained” for examination and inspection upon arrival in the U.S. Indeed, in February 2017, after the issuance of the first travel ban, Sidd Bikkannavar, a U.S.-born NASA scientist who works at NASA’s Jet Propulsion Laboratory returning from Patagonia was held at the George Bush Intercontinental Airport in Houston until he agreed to unlock his phone.

Following the DHS announcement, the U.K. announced a similar restriction on direct flights to the U.K. affecting airports in Egypt, Jordan, Lebanon, Tunisia, Turkey, and Saudi Arabia. This restriction will affect British carriers including British Airways as well as foreign carriers. Canada may soon announce such restriction as well.

ARTICLE BY Meredith K. Stewart of Jackson Lewis P.C.
Jackson Lewis P.C. © 2017

Tips for Surviving in a Time of Immigration Uncertainty

immigration travel banWe planned to write a blog about the revised travel ban Executive Order as soon as it came out. That the revised order was delayed for several weeks until March 6 highlights the uncertainty we face in 2017.[1] Below we try to answer various questions we regularly receive about immigration issues.

  1. Is domestic airplane travel OK? This may sound like a simple question, but recent events suggest more caution may be wise. For example, Immigration and Customs Enforcement (ICE) agents recently met a plane landing at JFK Airport in New York City, and asked everyone about their immigration status.[2] The agents were looking for someone who had an old deportation order, but it is possible that anyone without evidence of status could have faced delays. This is a good time to remind ourselves that the law requires anyone who is not a U.S. citizen to carry evidence of status at all times (green card, Employment Authorization Document (EAD), Form I-94 or electronic I-94 printout, valid, unexpired nonimmigrant DHS admission or parole stamp in a foreign passport, etc.).[3] Try to make it easy for a government officer.

  2. Isn’t that overreacting based on one incident? Maybe, but the bigger picture is that immigration enforcement agents have more discretion and wider operating room than before.[4] Two memos issued by the Department of Homeland Security (DHS) on February 20 allow for “expedited removal,” which is a fast track process that skips a hearing with an immigration judge.[5] Expedited removal now can apply to anyone who entered the country within the past 2 years (used to be 2 weeks), and anywhere in the United States (used to be within 100 miles of the border).[6] Expedited removal happens quickly, sometimes within a matter of days. Having a copy of a document showing status and that you have been in the United States more than two years could help avoid questioning and expedited removal.

  3. How about electronic devices? Can those be searched at the airport or border? The simple answer is “yes,” and this is happening more often.[7] We recommend that private information, such as a doctor with patient information, should be encrypted. According to the Customs and Border Protection (CBP) website,[8] CBP officers may search laptops, cell phones, or other electronic devices. CBP may not select someone for a personal search or secondary inspection based on religion, race, national origin, gender, ethnicity, or political beliefs. U.S. citizens may also be questioned and have their devices seized for refusal to provide passwords or unlock devices, but cannot be prevented from entering the United States. Noncitizens may, however, be denied entry. Adding to the uncertainty about how this will play out is a section in one of the January Executive Orders that directs federal government agencies to make sure they “exclude persons who are not United States citizens or lawful permanent residents” from Privacy Act protections concerning personal information.

  4. What does this mean for people from the six countries covered by the new travel ban? Will the court battle still continue? The new order clarifies that green card holders and Iraqis are NOT affected by the visa ban, and that people who had visas revoked or cancelled by the first order may be able to get a travel letter to return. The new order takes effect March 16, 2017, and lasts for 90 days. People with valid visas stamps in their passports can still use them, but new visa stamps will not be issued with very limited discretionary exceptions. The Visa Interview Waiver program is suspended for all countries, and the order states that DHS may add countries to the list after further review. People who are citizens of the six countries can still face additional questioning when they enter the United States as part of a general pattern of enhanced vetting. Travel for citizens of the six countries remains a calculated risk.

We expect that court challenges will continue. The ban still focuses on six predominently Muslim countries, which some see as a religious-based action.[9] There are still arguments about the negative effects on U.S. business and academic programs.

  1. What does this all mean for DACA recipients? The January Executive Orders state that the deferred action for childhood arrivals (DACA) program remains in effect, but that DACA “will be addressed in future guidance.” This is good news for the 750,000 plus people who have DACA. However, continuation of the program is not guaranteed. And the January Executive Orders call for greater enforcement against anyone with any kind of criminal issue or with a previous deportation order. Some DACA recipients have minor criminal issues – will they be able to renew? Some recipients have previous deportation orders – how will they be treated? DACA recipients should carry their DACA approval and work card with them, should keep investigating ways to get back into status, and talk to an attorney or legal service agency if they have ANY criminal issue, no matter how minor.

  2. What does this mean for undocumented parents of students who want to fly within the United States for their child’s graduation? Some of them have traveled before with no problems. President Obama’s “Priorities Memo” used the idea of prosecutorial discretion to give some level of comfort to those at the bottom of the priority list for enforcement. The new orders make clear that there is a top of the list, but no bottom. The law is the law, and anyone undocumented who is caught could be removed. Anyone who is undocumented who is considering traveling should talk to an attorney or legal service agency to evaluate their own particular situation. For example, immigrationlawhelp.org has a list of accredited agencies. Also, this is not a completely new situation. Every year we see family members abroad who do not receive tourist visas to come to the United States. For those situations, some schools have set up a Skype feed of the ceremony through someone’s cell phone, or sent the family a photo of the student graduating, or other clever ways of trying to include the family in the event.

  3. Speaking of DACA, can many of them really move beyond DACA now? It is certainly worth asking. Many filed for DACA on their own, and have never had a legal consultation despite the fact that their immigration histories can be incredibly complicated. Most interestingly, a growing number of DACA recipients got DACA under age 18½ and now have degrees. Those people MAY (emphasize “may”) not have what is called “unlawful presence,” and MAY be able to consular process an employment based visa or green card.

  4. Going beyond travel, are there any other ways campuses can prepare for new immigration enforcement priorities, short of declaring a “sanctuary campus”? Yes, there are some basic steps that campuses can take. One set of model guidelines focuses on interaction with government officials.[10] Campus response has varied but generally been strong in favor of international education and diversity. A Washington Post article found that the vast majority of schools have made some kind of statement.[11] Some schools have been concerned about the political effects of opposing the travel bans. They worry that if they declare themselves immigration sanctuaries they may put a target on their backs. While some schools may be less vocal in their responses, most are supporting students and scholars who are concerned, and connecting students with extra services including counseling and legal services.

  5. If I feel my school is not doing enough, what can I do? In immigration, stories matter. For example, an Iranian graduate student may be thinking of leaving the United States to do a post doc in another country, or cannot travel to present work at a conference abroad, or is simply not sleeping or eating well out of concern, or have a spouse is not still able to enter the United States. These stories help show the real impact of the travel ban. And facts matters – there are some good articles and websites that provide data on the basis of the travel ban and the effects, and also on the positive impact of immigrants on our economy.[12]

  6. I heard the Executive Orders canceled all of President Obama’s orders except for DACA. Does that include the “sensitive locations” memo that said enforcement should not take place at sensitive locations such as campuses, churches, and hospitals? It appears that the ban on enforcement at sensitive locations survives. This policy is still on the ICE website, and in a DHS Q&A.[13] We hope this will continue.

  7. Is it true that the Administration and Congress plan to cut back F-1 STEM OPT and the H-1B program, and raise the minimum salaries for H-1B workers? A lot of ideas and draft memos are floating around Washington how to “fix” immigration, including the H-1B system. Bills pending in Congress would amend the H-1B process. The White House may ask DHS to conduct a study of the visa process to determine which visa regulations may or may not be in the national interest, and to make recommendations on how to improve visa systems, including the H-1B system. Are we sure that nothing like this will happen quickly, surprising us the way the travel ban did? Not sure, but passing legislation in Congress and amending federal regulations are normally long-term projects. Remember, the Obama administration was successfully sued for trying to make big changes without formal procedures.

  8. That’s 11 questions – anything else I should know? We all need to remember the energy it takes to operate in uncertainty. In a recent presentation at a university, the director of the counseling center explained that uncertainty can be more tiring and emotionally challenging than bad news. At least with bad news, we can focus attention on how to address it. So hang in there!

ARTICLE BY  Steve Yale-Loehr of Miller Mayer LLP & Dan Berger of Curran & Berger, LLP
© Copyright 2013 – 2017 Miller Mayer LLP. All Rights Reserved.

[1] The new executive order is at https://www.whitehouse.gov/the-press-office/2017/03/06/executive-order-protecting-nation-foreign-terrorist-entry-united-states (Mar. 6, 2017).

[2] https://www.theatlantic.com/politics/archive/2017/02/papers-please/517887/?utm_source=fbb.

[3] INA § 264(e) provides: “Every alien, eighteen years of age and over, shall at all times carry with him and have in his personal possession any certificate of alien registration or alien registration receipt card issued to him pursuant to subsection (d). Any alien who fails to comply with the provisions of this subsection shall be guilty of a misdemeanor and shall upon conviction for each offense be fined not to exceed $100 or be imprisoned not more than thirty days, or both.” 8 C.F.R. § 264.1(b) lists the acceptable types of “registration” document that must be carried.

[4] https://www.nytimes.com/2017/02/25/us/ice-immigrant-deportations-trump.html.

[5] The DHS memos and accompanying fact sheets and Q&As are at https://www.dhs.gov/executive-orders-protecting-homeland.

[6] For an article discussing whether expedited removal is constitutional, see David Savage, Trump’s fast-track deportations face legal hurdle: Do unauthorized immigrants have a right to a hearing before a judge?, Mar. 3, 2017, http://www.latimes.com/politics/la-na-pol-deport-legal-20170302-story.html.

[7] For general information on the rights of travelers regarding social media accounts and electronic devices, see https://www.aclu.org/know-your-rights/what-do-when-encountering-law-enforcement-airports-and-other-ports-entry-us. For an interesting NPR piece on this issue, see http://www.wbur.org/hereandnow/2017/02/16/border-agent-unlock-phone.

[8] https://www.cbp.gov/border-security/protecting-nation-foreign-terrorist-entry-united-states.

[9] https://www.washingtonpost.com/opinions/the-evidence-for-trumps-travel-ban-simply-isnt-there/2017/02/27/90e228ac-fd36-11e6-8f41-ea6ed597e4ca_story.html; http://wapo.st/2mZbkx8.

[10] https://www.nilc.org/issues/immigration-enforcement/campus-safe-zones-language-college/.

[11] https://www.washingtonpost.com/news/monkey-cage/wp/2017/02/20/universities-overwhelmingly-objected-to-the-trump-travel-ban-here-are-the-values-they-emphasized/

[12] https://www.washingtonpost.com/graphics/national/visas-impact/; https://www.bloomberg.com/news/articles/2017-01-31/trump-s-immigration-ban-could-cost-u-s-colleges-700-million; immigrationimpact.org.

[13] https://www.ice.gov/ero/enforcement/sensitive-loc; https://www.dhs.gov/news/2017/02/21/qa-dhs-implementation-executive-order-border-security-and-immigration-enforcement (Question 28).

As Europe divides, Africa Unites with Common African Union E-passport

In 2015, African Union (AU) Commissioner for Political Affairs, Dr. Aisha Abdullahi, indicated that a plan was underway to implement a single African passport. After recent announcements that the AU passport would be unveiled at the AU Summit in Kigali this month, the long-awaited continental e-passport has finally been revealed. The first recipients of the pan-African passport were Rwandan President Paul Kagame, whose country hosted the summit, and Chadian President Idriss Deby, the chairperson of the AU. Others to receive some of the first pilot passports will include heads of state, foreign ministers and permanent representatives of the member states to the AU’s Addis Ababa headquarters. The timeline for the common passport roll-out to citizens of member countries is uncertain, although AU officials hope that citizens will have access by 2018.

african union e-passport

This long-awaited passport is targeted to address the perennial problem of border openness in sub-Saharan Africa; closed borders are cited as a substantial impediment to both intra-African trade and economic growth.

Out of the 54 countries in Africa, to date, only thirteen allow citizens from any other African country to travel without advance visas. These significant barriers to intra-African travel are believed to be a leading cause of the low levels of trade between nations on the continent. Whereas intra-European trade accounts for approximately 60% of all European trade and intra-North American trade accounts for 40% of all trade on the North American continent, intra-African trade only counts for about 13% of African trade. While a small portion of this difference may be explained by unrecorded informal trade across porous borders, the difference is nevertheless notable.

There is evidence that opening borders can lead to economic growth globally, and experiences on the African continent support this contention. For example, in 2013, Rwanda announced that travelers from any African country could receive a visa on arrival. After improving visa openness, Rwanda’s GDP growth increased to 7% in 2014, tourism revenues rose by 4%, and the number of African travelers to Rwanda increased 22%.

Rwanda has led the charge for the creation of an AU passport. Now, the Rwandan Minister of Foreign Affairs, Louise Mushikiwabo, has indicated that Rwanda is fully prepared to begin issuing the common passport to all of its citizens. In contrast, other African nations would need to enact legislation that would allow them to begin issuing the African Union passports to citizens. Based on the general response to the common passport—the AU has been “overwhelmed” by requests for the passport—it is likely that AU member countries will feel pressure from their own citizens to do so quickly.

Interestingly, Morocco—the only African country that is not currently a member of the AU—has asked to rejointhe organization after a decades-long absence during the same summit in which the AU passports were unveiled. The timing of Morocco’s request could allow the county to take advantage of the new common passport and the expanding perks of AU membership.

The unified passport will undoubtedly present challenges for countries with less advanced border-security technology and fewer resources to devote to border control. Currently, only nine African countries offer eVisas. The AU passport is biometric and considered secure, but the issuance and acceptance of these e-passports at entry points of countries currently without e-passports may present a problem.

Relaxed immigration restrictions may also lead to larger inflows of migrant workers to the more economically stable countries on the continent, which may stoke the sort of anti-immigrant sentiment that led to violence in South Africa last year.

Travelers who are not citizens of AU member countries will not be able to benefit from the common passport, and will still face the relatively restrictive entry requirements on the continent. However, the enhanced labor mobility resulting from the AU’s e-passport program  could have a catalytic effect on trans-African investments and commerce.

ARTICLE BY Khadijah A. Robinson of Covington & Burling LLP

© 2016 Covington & Burling LLP

Hotels and Hospitality in Cuba: OFAC and Obama Paving the Way

cuba_800_11429With more flights, relaxing regulations, a historic presidential trip to Cuba, and news of hospitality services expanding into Cuba, the pathway into Cuba for hotels and hospitality companies seems smooth.  But businesses should look out for the potential hurdles and compliance risks.  Don’t fret – we can help you welcome your guests.

Reserve Your Room: Regulatory Background. Since President Obama announced the intent to improve our country’s relationship with Cuba and its people a year and a half ago, several revisions to the sanctions regime have focused on easing restrictions related to travel between the two nations.  In February 2016, Cuba and the United States agreed to reestablish commercial air travel between the two countries.  According to media reports, this agreement means the potential for 110 daily round-trip flights in and out of Cuba, including 20 daily flights to Havana.

Soon after the agreement was announced, major U.S. airlines submitted applications to fly commercial flights to Cuba.  Though tourist travel is still prohibited, twelve fairly broad categories of travel are authorized, including family visits, travel for government work, journalism, professional research, humanitarian work and educational activities, and “people-to-people” educational travel.

In mid-March of this year, the U.S. Department of Treasury’s Office of Foreign Assets Control (OFAC) again revised the Cuban Asset Control Regulations (CACR), permitting more travel-related transactions.  According to OFAC, the steps “expand opportunities for economic engagement between the Cuban people and the American business community.”  The agency announced the changes in preparation for President Obama’s historic trip to Cuba.

  • People-to-people educational travel. Previously, the general authorization for educational travel required that trips took place under the sponsorship of an organization and required that a representative from the organization accompany the travelers. The regulations no longer require booking through an authorized organization when going to Cuba under the people-to-people educational travel general license. This means that U.S. persons can freely travel to Cuba to engage in educational exchange activities that enhance contact with the Cuban people, support civil society in Cuba, or promote Cubans’ independence from their government, as long as they keep records of the travel transactions and full-time schedule of activities.

  • Financial Transactions. The regulations enable U.S. banks to process U.S. dollars and travelers’ checks from Cuban banks, to conduct U-turn transactions in which Cubans have an interest, and to allow Cuban nationals to open bank accounts to receive payments in the U.S.

  • Business Presence. In addition, the regulations allow certain carrier and travel services providers to maintain a business presence in Cuba under a general license.  This means that travel-service providers are authorized to establish and maintain subsidiaries, branches, offices, joint ventures, franchises, and other business relationships with any Cuban national, and enter into all necessary agreements or arrangements with such entity or individual.

These changes encourage much more travel between Cuba and the United States, ease restrictions that affect the ability to operate hotels and hospitality services in Cuba, and demonstrate a policy shift in favor of facilitating business, particularly in the travel sector, in Cuba.

Checking In: President Obama’s Historic Visit.  In late March 2016, President Obama visited Cuba as the first sitting U.S. president to visit Cuba since Calvin Coolidge visited in 1928.  Not only was President Obama’s visit a diplomatic feat as he quoted Cuban independence poet Jose Marti’s line: “Cultivo una rosa blanca” (“Cultivate a white rose”) in a live address on Cuban television, but it was also a marked invitation for more American business involvement in the island nation.  Notably, Marriott CEO Arne Sorenson accompanied President Obama on his visit.  According to media reports, Marriott is pursuing business opportunities to run or develop hotels on the island, and to provide training and opportunities for Cuban nationals to supply hotel needs.

Enjoy Your Stay: A Suite of Opportunities.  As a result of the steady changes in the travel regulations, many hotels and hospitality companies are eager to take advantage of the opportunities that await in Cuba.  Even before the most recent updates announced this year, Airbnb announced its presence in Cuba to provide bookings for U.S. travelers in the authorized travel categories.  More recently, the company announced it has received permission from OFAC to open its doors to non-U.S. travelers as well.  Starwood has reportedly signed three deals to open properties in Havana, apparently being the first hospitality company to obtain specific authorization from OFAC to operate hotels in Cuba.  We think this signals OFAC’s willingness to use its licensing authority favorably for hotel and hospitality companies looking to develop in Cuba.

Earlier this month, a trade fair in Havana hosted a hall full of companies in the construction industry eager to get in on the ground floor of real estate and hotel projects that seem to be on the horizon.  U.S. travel to Cuba reportedly increased between 77 percent in 2015, and this upward trend is expected to continue as a result of the recent regulatory changes.  As the travel restrictions ease, travel-related businesses may gain greater latitude to develop the infrastructure to support such travelers and provide economic benefits to the Cuban people.

Check All Your Belongings: Compliance Challenges to Consider

  • Working under General Licenses. Though there is a general license authorizing certain travel services, providing lodging services is still prohibited unless specifically licensed by OFAC. Tourist travel is still prohibited by statute. Businesses that wish to operate under the general licenses must put together procedures that comply with these restrictions.

  • Getting Authorization. In order to effectively negotiate and finalize agreements with Cuban counterparties for the provision of services outside the general licenses, U.S. companies must receive authorization from OFAC.  This makes doing business difficult because putting in the resources and time to apply and receive authorization may not make business sense unless companies have concrete opportunities.  OFAC is currently inundated with applications and Cuba questions.  Hotel and hospitality companies looking to expand in Cuba should plan as early as possible and be prepared for the license application process and approval to take several months.

  • Restrictions on Property and Development. The inability to own property outright under Cuban law is an obstacle for many hotel companies that seek to invest in facilities that will maintain and build their brands.  It is a challenge to find an existing property to develop or property on which to build. It can be an even greater challenge to import the materials needed to develop and maintain the property.  Even if a company acquires authorization to build and develop a hotel, there will be a plethora of suppliers who may also need to seek authorization.  S. businesses must plan accordingly when seeking authority to develop properties.

  • Dealing with the Cuban Government. S. businesses will have to learn quickly about negotiating with the Cuban government and getting government approvals because most potential counterparties are state-owned, and each step in the development process will likely include government involvement. This also raises corruption risks (Don’t forget the FCPA!) as companies wine and dine potential counterparties and work toward getting permits.

  • Employee Base. For foreign companies seeking to establish a brand in the market, restrictions on hiring may pose extreme challenges.  Employment in Cuba is not left to market dynamics. Hiring Cuban employees involves working with the Cuban government and hiring the personnel designated by the government.  Generally the employer is required to pay the Cuban government directly, and the government pays the employees.  Complying with such Cuban laws may fly directly in the face of a company’s business model and may compound the U.S. law compliance challenges.

  • Cuban Law. Having counsel who understand the Cuban legal landscape and regulatory challenges will be crucial for U.S. companies.  Structuring deals in Cuba that comply with Cuban law can be tricky.  The legal infrastructure in Cuba for foreign investment is not well developed, so U.S. companies will face a steep learning curve to successfully finalize and implement deals in Cuba.  Moreover, Cuban lawyers have very different ethical obligations than U.S. clients may be used to (including a virtual complete lack of attorney-client privilege).

Even with the host of challenges, exploring the Cuban market presents an intriguing opportunity for hotel and hospitality companies.  With the right compliance strategy and the right team, U.S. businesses could enjoy their stay in Cuba for years to come.

Article By Fatema K. Merchant & Lisa C. Mays of Sheppard, Mullin, Richter & Hampton LLP

© 2016, Sheppard Mullin Richter & Hampton LLP.

USCBP Expected to Extend Global Entry Eligibility to All German Citizens

IUSCBP Expected to Extend Global Entry Eligibility to All German Citizensn a notice expected to be published in the Federal Register on Tuesday, February 16th, with an effective date the same day, US Customs and Border Protections (USCBP) announced that it is extending Global Entry eligibility to all citizens of Germany.

In 2013, USCBP launched a pilot program for German citizens to enroll in Global Entry. Eligibility for Global Entry for German citizens was limited to certain citizens who participated in ABG Plus, Germany’s former trusted traveler program. Individuals who qualified and received Global Entry authorization under the pilot program will not have to reapply.

Application Process

Newly eligible citizens of Germany will first need to visit an EasyPASS enrollment center in Germany and complete the risk assessment by the German Federal Police. Once approved, the German Federal Police will notify USCBP and the applicant will be able to apply for Global Entry via the GOES website.

Germany Registered Traveler Reciprocity

US Citizens may apply for EasyPASS at an EasyPASS enrollment center in Germany. There is currently no fee to apply for this program. You do not need to be registered in Global Entry in order to qualify for EasyPASS.

©1994-2016 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.
  • See more at: http://www.natlawreview.com/article/uscbp-expected-to-extend-global-entry-eligibility-to-all-german-citizens#sthash.8hVrniyu.dpuf

Cuba: Further Easing of the U.S. Sanctions

Following up on the historic changes in 2014 and 2015 to the five-decade U.S. trade embargo on Cuba, the Department of the Treasury’s Office of Foreign Assets Control (OFAC) and the Department of Commerce’s Bureau of Industry and Security (BIS) have announced new amendments to the Cuban Assets Control Regulations (CACR) and Export Administration Regulations (EAR), effective January 27, 2016.

What U.S. Companies Need to Know About the Easing of Restrictions

  1. Payment Terms for Authorized Exports to Cuba No Longer Restricted
    OFAC restrictions have been lifted on payment and financing terms for authorized exports and reexports to Cuba, except for agricultural commodities and items. U.S. banks will be authorized to provide financing by third-country or U.S. financial institutions (e.g., letters of credit, payment of cash in advance, sales on an open account). Payment for agricultural exports will still be limited to cash in advance or financing by third-country banks only. “Authorized exports and reexports” include those authorized under a BIS license exception (e.g., products and materials exported to private sector entrepreneurs under License Exception “SCP” – Support for the Cuban People), as well as export transactions permitted by BIS under a specific license.

  2. Most Cuban Embargo Restrictions Remain in Place
    Although the amendments to the CACR and EAR signify further relaxing of Cuba sanctions, the U.S. embargo on Cuba remains largely in place; most transactions between the U.S. and Cuba continue to be prohibited.

    In addition, a general policy of denial will still apply to exports and reexports of items for use by state-owned enterprises, agencies, or other organizations of the Cuban government that primarily generate revenue for the state. Additionally, applications to export or reexport items destined to the Cuban military, police, intelligence and security services remain subject to a general policy of denial.

  3. More Favorable Licensing Policies for Certain Exports and Reexports
    The following transactions still require a license application, but the chances of approval for such licenses have improved:

Exports to Cuban Government Agencies Meeting the Needs of the People: BIS is now considering, on a “case-by-case” basis, license applications for exports and reexports to Cuban state-owned enterprises and government agencies that provide services and goods to meet the needs of the Cuban people. Previously, such license applications were subject to a policy of denial. The new case-by-case policy applies to items for construction of facilities for public water treatment, electricity or other energy; sports and recreation; agricultural production; food processing; disaster preparedness, relief and response; public health and sanitation; residential construction and renovation; public transportation; wholesale and retail distribution for domestic consumption by the Cuban people; and artistic endeavors.

  • New Policy of Approval for Certain Exports and Reexports: License applications for the following exports and reexports are now subject to a “general policy of approval,” an upgrade from “case-by-case” consideration:

  • Environmental protection items: U.S. and international air quality, water, or coastline

  • Telecommunications items: To improve communications to, from, and among the Cuban people.

  • Civil aviation and commercial aircraft safety items: Those necessary to ensure the safety of civil aviation and safe operation of commercial aircraft engaged in international air transportation, including the export or reexport of civil aircraft leased to state-owned enterprises.

  • Agricultural items: Such as insecticides, pesticides, and herbicides, as well as other agricultural commodities (e.g., tractors and other farm equipment) not eligible for License Exception AGR

  • Commodities and software: To human rights organizations or to individuals and non-governmental organizations that promote independent activity intended to strengthen civil society in Cuba; also to U.S. news bureaus in Cuba whose primary purpose is the gathering and dissemination of news to the general public.

4. Travel Authorized for Additional Purposes Including Film Making 
U.S. persons are still prohibited from traveling to Cuba for tourism, but OFAC now permits travel to Cuba for additional purposes as highlighted below.

  • Travel related to information and informational materials now includes travel for the filming of movies and TV programs, music recordings, and artwork creation.

  • Organization of professional meetings, public performances, clinics, workshops, and athletic and other competitions and exhibitions in Cuba, in addition to the previously authorized attendance at such events.

5. Air Carrier Services Expanded to Permit Code-Sharing and Leasing
U.S. companies can now enter into blocked space, code-sharing, and leasing arrangements to facilitate the provision of carrier services by air, in connection with travel or transportation between the U.S. and Cuba, including such arrangements with a Cuban national.

Article By Global Services of Barnes & Thornburg LLP

© 2016 BARNES & THORNBURG LLP

Travel to the United States in 2016: The Year of Fear – Restrictions on the Visa Waiver Program (VWP) ESTA

On January 21, 2016, the United States began implementing changes under the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015.

Nationals of Visa Waiver Program countries who have traveled to or been present in Iran, Iraq, Sudan, or Syria on or after March 1, 2011, will no longer be able to participate in the Visa Waiver Program.  In addition, nationals of Visa Waiver Program countries who are also nationals of Iran, Iraq, Sudan, or Syria will not be able to participate even if they have not visited or been present in those countries. 

There will be limited exceptions for individuals who are traveling on behalf of international organizations, regional organizations and subnational governments on official duty; who are there on behalf of a humanitarian NGO on official duty; or are journalists traveling for reporting purposes.  Certain individuals traveling to Iran for legitimate business-related purposes following the conclusion of the Joint Comprehensive Plan of Action of July 2015 and other individuals traveling to Iraq for legitimate business related purposes may be exempt as well.

Currently, thirty-eight (38) countries are participants in the Visa Waiver Program:

Andorra

Hungary

New Zealand

Australia

Iceland

Norway

Austria

Ireland

Portugal

Belgium

Italy

San Marino

Brunei

Japan

Singapore

Chile

Republic of Korea

Slovakia

Czech Republic

Latvia

Slovenia

Denmark

Liechtenstein

Spain

Estonia

Lithuania

Sweden

Finland

Luxembourg

Switzerland

France

Malta

Taiwan**

Germany

Monaco

United Kingdom*

Greece

The Netherlands

Individuals impacted may still travel to the United States as visitors for business or pleasure, if they successfully complete the normal process for applying for a non-immigrant visa at a United States Embassy or Consulate, as others who are not nationals of Visa Waiver Program countries, regularly do.  However, there certainly is concern that there will be backlogs and delays associated with the visa application process.

The Year of Fear

The real question which yet remains unanswered is precisely how will this change be implemented.  Customs and Border Protection (CBP) of the United States Department of Homeland Security advises that it will be modifying its Visa Waiver Program (ESTA) questionnaire to identify individuals who might be ineligible and provide them an opportunity to explain why an exemption might be applicable.  How such applications will be processed and assessed remains unknown.

In addition, it is not clear how implementation will take place with reference to those individuals who are already ESTA Visa Waiver Program participants.  The inference is, that they will be notified, perhaps by e-mail, but it is unclear.  Accordingly, it would make sense for those, who are subject to these new restrictions, to be prudent and simply and proactively apply for visas at appropriate American Embassies or Consulates, or at the very least, reach out to CBP.  The CBP website is www.cbp.gov and the CBP Information Center can be reached at www.cbp.gov/contact.

Canadians and Americans

Canadians are generally visa exempt but do not participate in the Visa Waiver Program, and accordingly these provisions are not applicable to them.  Of course, the United States imposes no  restrictions with reference to United States citizens, but one can anticipate that there might be in the coming months, restrictions or, backlash, or reaction from other countries.

More to Come – Passport Restrictions

Beginning April 1, 2016, passports must be electronic  and fraud resistant, and contain additional biographic and biometric information not previously required.  In addition to being machine readable, passports must contain an electronic chip that stores biographic data, biometric identifier, a digital signature and a unique chip identification number.

In addition, Visa Waiver countries by October 1, 2016  must have the capability to validate passports at key points of entry with heightened ability to screen travelers.

So what does the rest of 2016 hold for us?  It looks like it will be a battle between those forces that would like to see this be a year of hope, as compared to those who will settle for it being a year of fear.  Each has a legitimate agenda.  We are a compassionate country that  wants to present a welcome face to visitors, business persons, refugees and those in need.  But, on the other hand, we certainly do have much to fear from those who would be very happy to take advantage of our benevolence and of our open society to do harm.

Ultimately, I think our security concerns will predominate, but hopefully, we will find a sensible balance and equilibrium as time goes by.

Article By David Grunblatt of Proskauer Rose LLP
© 2016 Proskauer Rose LLP.

A Proactive Approach to Travel Risk Management

Risk-Management-Monitor-Com

An improving economy and updated business practices have contributed to companies sending more employees than ever on international business trips and expatriate assignments. Rising travel risks, however, require employers to take proactive measures to ensure the health and safety of their traveling employees. Many organizations, however, fail to implement a company-wide travel risk management plan until it is too late – causing serious consequences that could easily have been avoided.

travel risk management

The most effective crisis planning requires company-wide education before employees take off for their destinations. Designing a well-executed response plan and holding mandatory training for both administrators and traveling employees will ensure that everyone understands both company protocol and their specific roles during an emergency situation.

Additionally, businesses must be aware that Duty of Care legislation has become an integral consideration for travel risk management plans, holding companies liable for the health and safety of their employees, extending to mobile and field employees as well. To fulfill their Duty of Care obligations, organizations should incorporate the following policies within their travel risk management plan:

  • A customized policy specific to the organization and the specific needs of traveling employees.
  • Clearly communicated protocols that are enforced to help educate and protect the safety and health of traveling employees.
  • Response plans and procedures for handling medical/health emergencies.

Proactive Resources for Your Traveling Employees

A travel risk management strategy can only be successful if your workforce is given the necessary resources well before travel occurs. An important part of any travel risk management strategy involves answering common questions employees may have regarding their upcoming travels. It’s also a good idea to provide them with follow-up information so they can be up-to-date.

Not only will a company-wide pro-active travel risk management plan empower employees with the information they need, but implementing such a plan can also help keep your company’s reputation and financial standing in check and prevent any liabilities against your business. The following resources can be useful as part of your overall travel risk management strategy:

  • Travel logistics such as hotel/meeting site location and reservations details, nearby pharmacies and medical clinics, and passport and/or visa arrangements. It is also crucial to share contact information in the event employees need help during an emergency – such as that of your travel assistance partner or internal emergency resources – and encourage them to add this information to their mobile phone contacts.

  • A medical overview is essential, especially if the host country requires visitors have documentation of specific vaccinations. Employees should understand and be up-to-date on all routine vaccinations (such as influenza, measles, and mumps). The CDC’s Travelers’ Health website has valuable information, such as worldwide health alerts, although a travel assistance partner can provide this information directly to your employees prior to travel. Additional insight your company can provide to traveling employees is information about health risks in their destination countries. This ensures employees are well aware of the quality of local food and drinking water as well as where to find quality medical care.

Also, since most health insurance plans do not cover members when they are traveling outside the U.S., businesses should purchase additional coverage. Even if their plans provide coverage outside the U.S., many health insurance policies aren’t able to mitigate all of the risks associated with business travel. It would only take one international medical evacuation (which can cost more than $100,000 from business hubs in Dubai, UAE to New York, or China to Texas) to make a serious impact, not just on your traveling employee but on your company as a whole.

  • A detailed synopsis of the destination’s political standing is crucial to keep your employees safe while traveling, as many regions of the world are experiencing political unrest and living under the very real threat of terrorism. It is important to ensure that your employee benefits package includes security coverage for employees traveling to high-risk areas.

Advance knowledge of the political status of a country will prepare employees should they face an unexpected issue abroad, as would these resources:

  • American embassies and consulates at the destination country, as well as the State Department’s emergency contact numbers.

  • Travel alerts, which provide information on risks to the security of U.S. citizens. Though usually short-term, these alerts must be taken seriously.

  • The State Department’s Smart Traveler Enrollment Program (STEP) is an extremely reliable resource that provides up-to-date location-specific security updates to any employee enrolled for the destination as well as information on the nearest U.S. Embassy. The enrollment will help U.S. Embassy or nearest U.S. Consulate to be in contact with your traveler in the event of an emergency.

Keep in mind that it is not just traveling employees – but also the employers – who need to be prepared for a travel-related emergency. Planning ahead and implementing company-wide crisis management education allows your workforce to be fully aware of the guidelines and protocols. Successfully mitigating a crisis without any communication missteps can prevent a crisis from spiraling into disaster.

ARTICLE BY

Risk Management Magazine
 
OF
Risk and Insurance Management Society, Inc. (RIMS)

Work and Travel Guidance for F-1 Students with Pending H-1B “Change of Status” Applications and “Cap-Gap” Employment Authorization

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This advisory summarizes key travel and employment issues if you are an F-1 studentwith Optional Practical Training (OPT) employment eligibility and an H-1B filing on your behalf has been accepted by US Citizenship and Immigration Services (USCIS).USCIS will adjudicate these visa petitions over the next few months and approved petitions will have an October 1, 2014 start date. The good news is that your OPT employment card is automatically extended, by operation of law, with validity to September 30, 2014 under the “cap-gap” OPT extension rule. This means you can continue working legally even after the expiration of your OPT employment card. We recommend that you alert your school’s international student office by providing that office with a copy of the H-1B receipt notice. The international student office will use this receipt information to update your I-20 to show the extension of your OPT.

International travel between now and October 1 is complicated, and whether you can travel and return to work before October 1 depends on your specific situation. As a general rule, it is safest not to travel during the cap-gap period. In all cases, travel as an F-1 student with OPT requires a valid F-1 visa stamp, Form I-20 with updated authorization for travel from your school’s international student office, the OPT Employment Authorization Document (EAD), and proof of current employment in the US (employer letter and/or recent pay slips).

Please note that any international travel carries risks. If your F-1 visa has expired and you need to apply for a new one, you may face delays for extra security clearances (221(g) administrative processing), or you may not be able to prove you have nonimmigrant intent, which is required for F-1 visa applications. Furthermore, even with a valid F-1 visa, admission to the US is up to the discretion of the US Customs and Border Protection (CBP) officer at the port of entry. We therefore caution you to carefully consider the need to travel as an F-1 student with OPT and list below some of the common scenarios and our recommendations.

1. My OPT employment card has not expired and my H-1B petition has been accepted, but not yet approved.

If you travel outside the US in this situation, the change of status part of your H-1B petition will be abandoned. This means that even when the H-1B is approved, your status will not change to H-1B because you departed the US while the H-1B “change of status” petition was pending. Your employment eligibility will end on September 30, 2014 with expiration of the cap-gap extension, and you will need to depart the US, apply for an H-1B visa stamp based on the petition approval, and reenter after October 1, 2014 to activate your status as an H-1B worker.

2. My OPT employment card has not expired and my H-1B has been approved.

In this situation, according to guidance from USCIS, it is possible to travel and not abandon the change of status because it has already been approved and is for a date in the future. Since there is no abandonment, once you return to the US on your F-1 visa, your change of status will be effective on October 1. However, there is a very real risk in traveling in this scenario as upon approval by USCIS of your H-1B petition, the Student and Exchange Visitor Information System (SEVIS) may no longer reflect that you are an F-1 student and you may have difficulties entering the US in F-1 status.

3. My OPT employment card has expired.

In this situation, you are eligible to remain in the US and continue working under the cap-gap extension rule discussed above. However, there is no provision or guidance from USCIS that allows for reentry during this cap-gap period once your EAD has expired. Therefore, if you must depart the US during this period, you will not be able to return to the US until you obtain an H-1B visa stamp based on approval of the H-1B petition. Initial entry into the US on an H-1B visa is allowed up to 10 days in advance of the start date of the petition approval. So, for an October 1 start date, this entry date can be as early as September 21. However, you will not be able to resume employment until October 1, 2014. Unless there is an emergent need to travel and arrangements can be made for remote work outside the US, you should make no plans to travel after expiration of your OPT employment card.

4. I need to depart the US and will not return until October 1 or later and will apply for the H-1B visa.

You can apply for the H-1B visa stamp any time after approval of the H-1B petition as soon as you can schedule an appointment at the US Embassy or Consulate. The visa will not be effective until October 1, 2014, but you can, and are encouraged to, apply for it as soon as possible to avoid the rush in September. Please note H-1B nonimmigrants are allowed to enter the US up to 10 days in advance of the petition validity. However, you cannot start employment in H-1B status until October 1. This 10-day time period is intended to allow you to get settled in the US before starting employment.

5. My H-1B petition was denied by USCIS.

If your H-1B petition is denied and your OPT EAD is still valid, you are authorized for ongoing employment in the US until your EAD expires. However, cap-gap employment eligibility after expiration of the EAD is only valid while the H-1B petition is pending with USCIS. Therefore, you are no longer eligible to continue working in the US if your H-1B petition is denied and your OPT EAD has expired.

The examples above all deal with the situation where the H-1B filing has been accepted by USCIS out of the quota. If the H-1B petition filed on your behalf was rejected, you may choose to travel if you have a valid F-1 visa stamp, Form I-20 with updated authorization for travel from your school’s international student office, the OPT Employment Authorization Document (EAD), and proof of current employment in the US in the form of an employer letter and/or recent pay slips. You may also stay in the US for 60 days after the expiration of your F-1 OPT status, but only for purposes of settling your personal affairs and domestic travel within the US. You are not allowed to work during this 60-day grace period. If you travel outside the US during the 60-day grace period, even if you do not plan to work upon your return, you will not likely be readmitted because you will be deemed to have departed the US at the conclusion of your F-1 program, thus fulfilling the need for the 60-grace period. The 60-day grace period is not meant to facilitate international travel and reentry — it is designed to allow F-1 students to remain in the US at the end of the F-1 program to settle their affairs until they are ready to depart the US.

Article By:

Susan J. Cohen
William L. Coffman
Of: 
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.