Immigration Alert: How Does President Trump’s Immigration Executive Order Impact You?
On January 27, 2017, President Trump signed an Executive Order limiting the admission of refugees and nationals of certain countries into the United States. The Executive Order bars Syrian refugees from being admitted into the United States indefinitely and suspends all other refugee admissions for a 120-day period. The Executive Order also bars nationals from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen from entering the United States for a 90-day period.
Unclear language used in the Executive Order has caused significant confusion at airports and ports of entry regarding the admission of individuals from the designated countries listed above. But here is what we know now, which is subject to change:
- Anyone who holds a passport from one of the seven countries listed above is considered to be "from" the designated country, including dual citizens who hold passports from a designated country, as well as a non-designated country;
- The Executive Order does not apply to individuals who have merely traveled to one of these seven countries. However, the U.S. Department of Homeland Security may question all individuals who seek to enter into the United States and will have broad discretion to admit or deny entry;
- The ban on admission applies to non-immigrant visa holders (for example, H-1B, L-1, J-1 visa holders), immigrant visa holders, refugees, derivative asylees, Special Immigrant Visas (SIVs), and others;
- Lawful permanent residents (i.e., green card holders) were initially included in the ban. As of January 29, 2017, however, the U.S. Department of Homeland Security announced that the entry of lawful permanent residents “is in the national interest” and that absent some significant derogatory information indicating a serious threat to the United States, lawful permanent residents from one of these seven countries may be admitted into the United States on a case-by-case basis;
- It is not clear whether or not the Executive Order will bar individuals from these seven countries from applying for permanent residence in the United States; and
- The Executive Order may be extended beyond 90 days and additional countries may be added to the list.
The impact and scope of the Executive Order is still unclear, as protests and legal action have quickly emerged across the United States. As of this writing, multiple federal judges have issued rulings to partially block the Executive Order by stopping the federal government from removing refugees and individuals with valid visas. It is unclear how consistently the Executive Order and subsequent court rulings will be applied by U.S. Customs and Border Patrol officers at airports and ports of entry nationwide.
Given the current uncertainty with how the Executive Order will be applied, we strongly advise employers to take the following steps to protect your foreign workers:
- Advise employees who are citizens/nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen to avoid traveling outside the United States;
- Advise all foreign nationals to postpone international travel in the near term if at all possible as the Executive Order creates changes which may have a tangential impact on non-designated countries. Foreign nationals from any country, not just the seven designated countries, who need to renew their non-immigrant work visa (such as H-1B, L-1, TN and E visas) may be subject to increased administrative processing or experience delays in scheduling visa appointments and/or sharp increases in visa wait times, thus possibly delaying their ability to return to the United States. If any of your employees absolutely need to travel internationally, please advise them to contact you in advance of their travel so they can be properly advised about the possibility of delays upon their return; and
- Advise all foreign nationals to maintain documentation of their immigration status if international travel is absolutely required, as stricter scrutiny is expected across the board regardless of nationality.
Please note that the current situation is very fluid and may change at any time.
This most recent executive action has demonstrated that the Trump Administration plans to move aggressively on immigration issues. There are predictions that future Executive Orders may address important employment-based immigration issues including reforming the eligibility criteria for F-1 STEM OPT extensions, eliminating H-4 employment authorization for H-1B dependents, increasing work site inspections/audits, and significantly altering the H-1B visa allocation process.
Waller will monitor developments and provide updates as new information becomes available. For additional information about the Executive Order and general immigration issues, please contact Vinh Duong at 615.850.8936 or Nora Katz at 615.850.8730.
The opinions expressed in this bulletin are intended for general guidance only. They are not intended as recommendations for specific situations. As always, readers should consult a qualified attorney for specific legal guidance.