Issued and upcoming executive orders by President Trump will impact business immigration in addition to family immigration and refugee programs.
On the evening of Friday, January 27, US President Donald Trump issued an executive order (EO) titled "Protecting the Nation from Foreign Terrorist Entry into the United States."
This Immigration Alert summarizes the principal provisions in the EO and also discusses a draft order not yet signed by the president, which merits discussion because it would impose significant burdens on various aspects of legal immigration.
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Immediate Impact for Employers and Businesses
- The EO imposes a travel ban on individuals who are from Iraq, Iran, Syria, Sudan, Libya, Somalia, and Yemen. The ban applies to individuals with visitor (B-1/B-2) and work visas (e.g., H-1B, L-1, O-1). It is in effect for 90 days—until April 27, 2017.
- The EO does not affect naturalized US citizens from the seven named countries.
- After some initial confusion, it appears that permanent residents (green card holders) from the specified countries will be admitted to the United States, but will likely undergo secondary screenings at US ports of entry. Individuals who are not citizens of one of the specified countries but who are residents of or have other strong ties to any of these countries may also be barred from entering the United States.
- Citizens of the specified countries who hold dual citizenship with another country appear to be included in the ban (although on an inconsistent basis), but the scope of enforcement is unclear.
- The ban appears also to apply to individuals in the green card process who have an advance parole travel document.
- US Citizenship and Immigration Services (USCIS) has been ordered to suspend processing of all immigration benefit applications filed by or on behalf of nationals of the seven countries.
Action for Employers
- Cancel all international travel for at least 90 days by employees or individuals doing business with your company who will be subject to the travel ban.
- Identify any pending requests for immigration benefits on behalf of individuals from one of the specified countries in order to assess the implications of the apparent suspension in the processing of those petitions or applications.
- Prepare for potential disruption with service providers whose employees may be impacted by the EO.
Summary of Executive Order
Two days after issuing executive orders targeting border security (including the "immediate construction of a physical wall on the southern border”) and calling for enhanced enforcement of existing immigration laws, President Trump signed a third executive order titled “Protecting the Nation from Foreign Terrorist Entry into the United States.” Stating that “numerous foreign-born individuals have been convicted or implicated in terrorism-related crimes since September 11, 2011,” the EO most notably suspends all entry into the United States by both immigrants and nonimmigrants from certain predominantly Muslim countries—for a period of 90 days. An additional provision in the EO terminates the Visa Interview Waiver Program.
The president’s order suspends “entry into the United States, as immigrants or nonimmigrants” by everyone from countries referenced in the EO.
Here’s what we know:
- Affected individuals include those from Iraq, Iran, Syria, Sudan, Libya, Somalia, and Yemen.
- The EO makes exceptions for diplomatic, NATO, and C-2 transit visas, and others on a case-by-case basis if doing so is in the national interest.
- In a reversal from his earlier assertions—and contrary to the experiences of the many who were detained—President Trump confirmed on Sunday that permanent residents from the seven countries (green card holders) will be allowed to enter the United States. Department of Homeland Security (DHS) Secretary John Kelly confirmed later in the day that this is now also DHS policy barring “receipt of significant derogatory information indicating a serious threat to public safety and welfare.” Note that the situation is still fluid, and affected permanent residents may still face additional scrutiny seeking entry into the United States.
- Citizens of the seven listed countries who hold dual citizenship with another country appear to be included in the ban, but the scope of enforcement is unclear.
- Official Canadian sources indicated that Canadian dual citizens appear to be exempt and have been admitted to the United States, and the foreign secretary of the United Kingdom stated that UK dual nationals are only implicated if traveling from one of the seven countries themselves. Neither of these indications is confirmed by US officials.
- The US Department of State has begun the process of canceling nonimmigrant and immigrant visa appointments at consular posts abroad in accordance with the EO.
- USCIS has been ordered to suspend processing of all immigration benefit applications filed by nationals of the seven countries. This would include any application—from a request to renew an employment authorization document, to a nonimmigrant petition (e.g., H-1B, L-1), to a naturalization application.
- Syrian refugees are indefinitely barred from entering the United States, and all refugee admissions are suspended for 120 days.
As mentioned above, the president’s order also immediately suspends the Visa Interview Waiver program (not to be confused with the Visa Waiver program), which permitted eligible foreign nationals who wish to renew a nonimmigrant visa to request a waiver of the in-person interview requirement. Affected applicants include beneficiaries with valid or recently expired nonimmigrant visas, children under 14 years of age, and applicants over 80 years of age. This means that foreign nationals seeking visa issuance at United States consular posts abroad may face increasing delays in obtaining appointments and in visa processing times.
Response to the Executive Order
Lawyers from the American Civil Liberties Union (ACLU) and others quickly filed four lawsuits in federal court in various jurisdictions. The suits sought immediate relief for individuals being detained at airports but left for further proceedings any determination of the fundamental legality of the president’s order:
- Alexandria, Virginia: Judge Leonie Brinkema barred the deportation of all permanent residents being detained at Dulles Airport for a period of seven days and required that Customs and Border Protection grant lawyers access to all affected individuals.
- Boston, Massachusetts: A Sunday morning order signed by Judge Allison Burroughs and Magistrate Judge Judith Dein ordered the release of all approved refugees and those with valid visas from the seven countries listed in the EO.
- New York, New York: Following an emergency Saturday night hearing, federal judge Ann Donnelly of the Eastern District of New York granted a stay that prevents the deportation of individuals affected by the EO who are currently detained.
- Seattle, Washington: Judge Thomas S. Zilly blocked the deportation of two immigrants until a hearing set for the following Friday.
Note that these decisions do not strike down the EO, and they do not benefit anyone who has not already arrived in the United States.
We strongly recommend that anyone in the United States who believes that he or she may be subject to the entry ban cease travel for at least the next 90 days. We also recommend that companies with immigration programs review their foreign national population so that they are in a position to assist and advise any employee who might be subject to the ban.
Draft Executive Order
An additional draft executive order, which has been publicly circulated, would target various aspects of legal immigration:
- The order would require DHS to start performing site visits at places of employment of L-1 nonimmigrant workers, including third-party worksites, within 180 days. The DHS must also develop a plan to expand the site-visit program to cover all employment-based visa programs within two years.
- In the draft order, the president calls for the secretary of DHS to submit a report within 90 days that includes a “list of options for incentivizing and expanding participation by employers in E-Verify, including by conditioning, to the maximum extent allowed by law, certain immigration-related benefits on participation in E-Verify.”
- A recent rule change permits 24-month Optional Practical Training (OPT) extensions for recent graduates in a series of science, technology, engineering, and mathematics (STEM) fields. The president’s order looks to scale back the use of OPT and calls for the secretary of DHS to “reform practical training programs for foreign students to prevent the disadvantaging of US students in the workforce, better protect US and foreign workers affected by such programs, restore the integrity of student visa programs, ensure compliance, and improve monitoring of foreign students.”
- The draft order calls for notice and comment regulation that would limit the use of parole “to the requirements of the immigration laws and would clarify that parole may never be used to circumvent statutory immigration policy or admit into the United States entire classes of foreign nationals who do not qualify for admission under existing immigration categories.” This appears to target a draft USCIS rule that would allow certain international entrepreneurs to be considered for starting or scaling their businesses here in the United States.
- In the draft order, President Trump orders the secretary of state and secretary of DHS to “propose for notice and comment a regulation that would reform the E-2 treaty investor visa category for foreign entrepreneurs so that activity allowed for such entrepreneurs conforms to the requirements of the immigration laws.”
The draft order also includes a requirement that the US Department of Labor (DOL) investigate “the extent of any injury to US workers caused by the employment in the United States of foreign workers admitted under nonimmigrant visa programs” and issue a report on its findings within 18 months. The DOL is also required to file an initial report within nine months limited to the use of H-1B, L-1, and B-1 programs and their harm to US workers. A similar request will require the secretary of DHS to submit a report within 90 days to “review all regulations that allow foreign nationals to work in the United States, determine which of those regulations violate the immigration laws or are otherwise not in the national interest and should be rescinded, and propose for notice and comment a rule to rescind or modify such regulations.”
For more information, or if you have any questions regarding the issues discussed in this Immigration Alert, please contact any of the following Morgan Lewis lawyers:
Eric S. Bord
A. James Vázquez-Azpiri
Roland C. Lechner
Lisa Stephanian Burton
 E-Verify is an online system operated by DHS that allows for the electronic verification of employment authorization of newly hired employees for employers participating in the program.