On Wednesday, the Department of Homeland Security Immigration Arm, the United States Citizenship and Immigration Service, announced that Iranians will no longer qualify for E-2 visa status. According to USCIS, the termination of the Treaty of Amity with Iran in 2018, necessitated the change. In this post, I will argue that USCIS’s decision is unconstitutional since the President may not unilaterally revoke a treaty.
The E visa classification allows an international trader (E-1) or an international investor (E-2) to come to the United States to conduct business. The classification is based on treaties between the United States and the investor’s country. To date, there are more than 40 countries whose nationals can come to the United States under such treaties.
Iran entered the treaty in 1957. Even though the United States ended diplomatic relationships with Iran, the Treaty of Amity with the country was not revoked. Nationals of Iran could still come to the United States under the classification if they met the criteria. Wednesday’s announcement ended the classification under the alleged nullification of the treaty in 2018. In other words, the government waited a year and a half after such nullification to terminate the classification.
I argue that such nullification was not constitutional since it id not comport with federal regulations and the constitution. As far as I know, the government did not go through the notice requirements under the Immigration & Naturalization Act. Additionally, the unilateral decision is unconstitutional since Congress, which entered the United States into the treaty, has the sole power to nullify the treaty.
The failure to give notice of the potential nullification violated the due process rights of those Iranians who currently hold the status. Moreover, under the Treaty Clause of the Constitution, Congress was not informed of such nullification and did not withdraw from the treaty as required under the Constitution. In fact, Secretary Pompeo unilaterally withdrew the United States from the treaty through an announcement.
The decision to end the E classification for Iranians should be challenged in court. I am hoping that such a challenge will come soon.
If you are affected by the decision, please call an immigration attorney as soon as possible You can contact us by using the form on this page.