United States: USCIS Expands and Clarifies Adjudication Policies Applied to Foreign Nationals from Travel Ban Countries

Under the above policies, affected foreign nationals and their applications will undergo a re-review of eligibility and admissibility, including a potential interview or re-interview. According to USCIS, the focus of these re-reviews will be identifying potential security or public safety threats, as well as any security-related grounds of ineligibility.

The January memorandum explicitly states that USCIS will place an adjudicative hold on all pending benefit requests submitted by or for foreign nationals from travel ban countries, which makes clear that the new policies apply to employment-based petitions filed on behalf of foreign nationals from travel ban countries, such as the Form I-129 nonimmigrant visa petition or Form I-140 immigrant visa petition.

USCIS also clarifies in the new memorandum that an adjudicative hold permits USCIS to process the case up to the final adjudication, meaning up to, but not including, the issuance of a final decision such as an approval, denial, or dismissal. Therefore, pending applications or petitions that are subject to the hold policy may continue to receive Requests for Evidence (RFE) and Notices of Intent to Deny (NOID).

In the new memorandum, USCIS provides a list of immigration benefit requests that are exempt from the adjudication hold policy. The list includes:

• Form I-90, Application to Replace Permanent Resident Card (Green Card);
• Benefit requests filed by any foreign national who is an athlete or member of an athletic team, including coaches, persons performing a necessary support role, and immediate relatives for the purpose of participating in the World Cup, Olympics, or other major sporting event as determined by the Secretary of State; and
• Benefit requests filed by foreign nationals whose entry would serve a U.S. national interest.

In December, USCIS acknowledged that the agency may receive requests to lift an adjudicative hold on a specific application due to litigation or other extraordinary circumstances and said that any such request must be approved by the USCIS Director or Deputy Director.

Countries on the newly expanded travel ban list are Afghanistan, Angola, Antigua and Barbuda, Benin, Burkina Faso, Burma, Burundi, Chad, Republic of Congo, Cote d’Ivoire, Cuba, Dominica, Equatorial Guinea, Eritrea, Gabon, The Gambia, Haiti, Iran, Laos, Libya, Malawi, Mali, Mauritania, Niger, Nigeria, Senegal, Sierra Leone, Somalia, South Sudan, Sudan, Syria, Tanzania, Togo, Tonga, Turkmenistan, Venezuela, Yemen, Zambia, and Zimbabwe. In addition, foreign nationals who seek to travel to the United States using Palestinian Authority-issued or -endorsed travel documents are subject to the travel ban and to any travel ban-related USCIS policies.

USCIS says that the adjudicative hold policy will apply if a travel ban country is listed as the foreign national’s country of birth or country of citizenship on their immigration benefit application. This means that the new policy for pending applications will affect a larger group of foreign nationals than the travel ban itself. The travel ban applies only to nationals of the listed countries, not to those born in the country who are not or are no longer a national of a listed country.

Foreign nationals who are affected by the USCIS directives must be prepared for additional vetting, requests for evidence related to their eligibility for the relevant immigration benefit or for security-related matters, and requests to appear for an interview or re-interview.

Employers and foreign nationals should also be reminded that in recent months, USCIS has made changes to its Policy Manual, directing USCIS officers to consider a foreign national’s country of birth or nationality as a factor in any discretionary adjudication and should generally treat being from a travel ban country as a negative factor in the discretionary analysis. This agency guidance means that even after the instant USCIS adjudicative hold policy is lifted, employers and foreign nationals could continue to see RFEs and NOIDs that request evidence of countervailing positive discretionary factors for foreign nationals from a travel ban country or other country of concern. Discretionary determinations include adjustment of status applications as well as nonimmigrant change of status and extension of stay requests.

Relatedly, a group of almost 200 individuals have filed a lawsuit in a Massachusetts federal district court challenging the USCIS hold policy and the recent changes in USCIS discretionary adjudication policy on statutory and constitutional grounds. The case is Doe v Trump, 25-cv-13946 (D. Mass.) and Fragomen is monitoring its progress.

Fragomen will provide further information as more details become available.