Limited Reopening of U.S. Visa Processing at Consulates in Russia

On December 4th, the U.S. Embassy in Moscow announced that nonimmigrant temporary visa (NIV) interviews will resume on a limited basis at the three U.S. consulates in Russia. As of December 11, 2017, the U.S. consulates in St. Petersburg, Yekaterinburg, and Vladivostok will resume visa nonimmigrant visa processing at a level described as “limited.”

This is an update to our previous post “U.S. Visa Operations across Russia Temporarily Suspended” explaining the August 21, 2017 U.S. Department of State (DOS) suspension and partial, limited, resumption of NIV operations within Russia. Since that time, nonimmigrant visa interviews in Russia have been conducted exclusively at the Embassy in Moscow leading to ongoing substantial nonimmigrant visa interview backlogs.

The reopening of the U.S. consulates in Russia for NIV interviews should help to reduce the wait time for such interviews. However, operations are below full capacity, this action will not restore appointment availability and wait times to standard levels. The waiting times are likely to continue to be measured in months, not days, until these issues are resolved.  While the resumption of services is a welcomed measure, their limited nature requires ongoing monitoring.

Travel Ban Injunction Lifted by Supreme Court

The U.S. Supreme Court has cleared the way for enforcement of President Trump’s September 24, 2017 travel ban. On December 4, 2017, the U.S. Supreme Court issued two, virtually identical, orders staying preliminary injunctions issued against the travel ban by lower courts in Maryland and Hawaii. The Court’s actions allow the September 24, 2017 edition of the travel ban to proceed while the Fourth and Ninth Circuit Courts of Appeals consider legal challenges to the ban on an expedited basis.

The travel ban at issue is the third in a series of hotly contested immigration restrictions implemented by President Trump via Executive Order (EO). The September 24, 2017 presidential travel ban proclamation is grounded in a global review of information sharing and security practices and identification of countries deemed to be “inadequate” in this regard. The broad scope global information sharing and security review was mandated by the March 6, 2017 EO travel ban.

As explained in more detail, below, the September 24 proclamation contains travel restrictions applicable to nationals of eight countries: Iran, Libya, Somalia, Syria, Yemen, Chad, North Korea and Venezuela. Challenges to the ban filed in Maryland and Hawaii resulted in partial injunctions, applicable to the listed countries, other than North Korea and Venezuela. The injunctions limited the ban’s restrictions to foreign nationals without a bona fide relationship with certain persons (family) or entities in the U.S. Thus, the injunction provided a reprieve to eligible nationals of Iran, Libya, Somalia, Syria, Yemen, and Chad, if they could demonstrate a qualifying U.S. family or entity relationship. The Supreme Court’s December 4th order removes this injunction and, thereby, allows the proclamation to move forward in full force without a bona fide relationship exception.    Continue Reading

The DOJ’s New FCPA Corporate Enforcement Policy: Dangling Presumptive Declination as an Incentive for Voluntary Disclosure

As we discussed in last week’s blog post, on November 29, 2017, Deputy Attorney General Rod J. Rosenstein made remarks at the American Conference Institute’s 34th International Conference on the Foreign Corrupt Practices Act (FCPA) recognizing the success of the FCPA Enforcement Plan and Guidance (commonly referred to as the FCPA “Pilot Program”), which had been in effect since April 5, 2016.  In those remarks, Mr. Rosenstein also announced a revised FCPA Corporate Enforcement Policy.  The new policy, which has been formally incorporated into the US Attorneys’ Manual (USAM), and is specific to the FCPA, continues and builds upon aspects of the Pilot Program.  Its goal is to “increase the volume of voluntary disclosures” by providing additional transparency and certainty concerning the benefits of voluntary disclosure, full cooperation, and full and timely remediation, thereby “enhanc[ing] the [DOJ’s] ability to identify and punish culpable individuals.”  A transcript of Mr. Rosenstein’s remarks can be found here.

For more information, please see our advisory.

Use of Testimony Compelled in Foreign Jurisdictions

In November, the US Circuit Court for the Second Circuit declined to rehear en banc its July 19, 2017 decision in United States v. Allen, which recognized the testimony of a criminal defendant that is compelled by law in a foreign jurisdiction cannot be used, either directly or indirectly, as evidence against him at trial. The Second Circuit’s decision has broad consequences for individuals involved in criminal investigations with a multijurisdictional dimension in both the United States and countries where testimony can be compelled. This includes investigations inherently transnational in character, such as FCPA investigations, as well as investigations that may arise in other areas of cross-border activity, for example those involving civil agencies like the SEC and CFTC.

For more information, please see our advisory.

Patrick Linehan, a partner in Steptoe’s Washington office, authored this advisory. 

Deputy Attorney General Rosenstein Announces Significant New FCPA Corporate Enforcement Policy

Yesterday, in remarks made at the 34th International Conference on the FCPA, Deputy Attorney General Rod J. Rosenstein recognized the success of the FCPA Pilot Program and announced a revised FCPA Corporate Enforcement Policy geared at “increas[ing] the volume of voluntary disclosures” and “enhanc[ing] the [DOJ’s] ability to identify and punish culpable individuals.”  A transcript of Mr. Rosenstein’s remarks can be found here.

Most importantly, the policy – which has been formally incorporated into the United States Attorneys’ Manual and is limited to FCPA cases – creates the presumption that a company meeting all standards relating to voluntary self-disclosure, full cooperation, and timely and appropriate remediation will have their case resolved through a declination “absent aggravating circumstances involving the seriousness of the offense or the nature of the offender.” Under the policy, aggravating circumstances include (but are not limited to): Continue Reading

Trump Designates North Korea as a ‘State Sponsor of Terrorism,’ Makes Additional Sanctions Designations

On November 20, 2017, President Trump announced that North Korea would be designated a “state sponsor of terrorism.”  The only other countries with this designation are Syria, Iran, and Sudan.  The president also stated that the United States would announce the imposition of additional sanctions on Pyongyang.  The next day, the US Department of the Treasury’s Office of Foreign Assets Control (OFAC) announced sanctions against one individual, 13 entities, and 20 vessels operating in or with ties to North Korea.

For more information, please see our advisory.

UN and EU North Korea Sanctions: Impacts on European and Cross-Border Trade

As tensions continue to escalate between the United States and North Korea, and President Donald Trump and Kim Jong-Un trade increasingly tense lobs, the United Nations, the EU, the United States, and other countries continue to impose further stringent sanctions against North Korea to a breaking point (for details on UN Security Council Resolution 2375 and the US’s new sanctions, see our previous advisory). In our most recent advisory, we provide an overview of the EU sanctions measures imposed against North Korea, review their impact, and offer some reflections on actions that may take place in the future.

For more information, please see our advisory.

A ‘Modest Proposal’ for Cuba: OFAC, BIS and State Department Implement President’s New Cuba Policy

Effective November 9, 2017, the Department of the Treasury’s Office of Foreign Assets Control (OFAC) and the Department of Commerce’s Bureau of Industry and Security (BIS) amended the Cuban Assets Control Regulations (CACR) and Export Administration Regulations (EAR), respectively, to implement US Cuba sanctions policy changes President Trump announced in a presidential memorandum issued June 16, 2017.  Concurrently, as required by the presidential memorandum, the Department of State published a list of 180 entities and subentities associated with Cuban military, intelligence, and security services (Cuba Restricted List).  As such, US government policy establishes that direct financial transactions conducted by persons subject to US jurisdiction with persons identified on the Cuba Restricted List would disproportionately benefit them at the expense of the Cuban people or private enterprise in Cuba.

Even though President Trump announced in June that he was “cancelling the last administration’s completely one-sided deal with Cuba,” the memorandum he issued in June, and the regulatory changes implemented by the State, Treasury, and Commerce Departments last week, reflect relatively moderate changes to US Cuba sanctions policy, as we previously explained in our June advisory on the matter.  While these changes limit certain US business activity with, and travel to, Cuba, they do not reflect a roll-back of all (or even most) of the Obama Administration’s significant Cuba sanctions reforms.

For more information, please see our advisory.

Russian Sanctions Update: OFAC Amends Directive 4 and Updates FAQ Guidance

On October 31, 2017, the Office of Foreign Assets Control (OFAC) took a number of actions to implement the Countering Russian Influence in Europe and Eurasia Act (CRIEEA) (also known as the Countering America’s Adversaries Through Sanctions Act (CAATSA), a larger sanctions statute of which CRIEEA was a part).  As part of this, OFAC amended Directive 4 under Executive Order 13662—related to prohibitions on supplying Russian oil projects—and issued updated Frequently Asked Question (FAQ) guidance on restrictions related to foreign financial institutions, facilitating transactions with sanctioned persons, sanctions evasion, and investments in Russian state-owned assets.  OFAC also provided guidance regarding CRIEEA’s authorization of sanctions targeting the railway and metal and mining sectors.

Expansion of Prohibitions on Supplying Russian Oil Projects

Directive 4 as amended prohibits U.S. persons from directly or indirectly providing, exporting, or re-exporting goods, services (except for financial services), or technology in support of exploration or production for deepwater, Arctic offshore, or shale projects that meet all three of the following criteria: (1) the project was initiated on or after January 29, 2018; (2) the project has the potential to produce oil in any location; and (3) Russian individuals or entities designated under Directive 4—individually or in the aggregate—either have a 33 percent or greater ownership interest in the project or own a majority of the voting interests in the project.  Directive 4 does not apply to gas-only projects.    Continue Reading

Economic Sanctions Webinar

On Wednesday, November 15 at 12:00 PM EST, Anthony Rapa will be presenting “Recent Developments in Economic Sanctions: Russia, Iran, Venezuela, North Korea, and Cuba,” a webinar hosted by Federal Publications.  As described on the Federal Publications website:

From “decertifying” the Iran deal to disputes with “Rocket Man,” the economic sanctions world has seen dizzying changes over the last several months. This webinar will explore the most recent developments under U.S. sanctions, and will touch upon the related EU sanctions context, with a focus on sanctions against Russia, Iran, Venezuela, North Korea, and Cuba.

You can sign up for the webinar here.