Immigration is one of President Trump’s signature issues that he campaigned on in the 2016 election. In attempting to fulfill his campaign promises, during his first week in office, President Trump issued three (3) Executive Orders. It is the 3rd Executive Order that is currently having the greatest impact on affected foreign national employees in the workplace.
On January 27, 2017, President Trump issued the Executive Order, entitled “Protecting the Nation from Foreign Terrorist Entry Into the United States.” This Order suspends entry by individuals into the United States from 7 predominantly Muslim countries in the Middle East: Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen for 90 days, and indefinitely suspends the entry of Syrian refugees. The full scope of this Executive Order is summarized below. Developments regarding the interpretation and implementation of this Executive Order are fluid, and litigation challenging this Executive Order is pending around the Country. Employers must be aware of how this Order may impact their foreign national employees’ visas and their ability to travel outside of the United States.
On February 3, 2017, the United States District Court for the Western District of Washington issued a temporary restraining order (TRO), prohibiting the federal government from enforcing Sections 3(c) [90-day travel ban on “immigrants and nonimmigrants” from designated countries], 5(a) [120-day ban on U.S. refugee program], 5(b) [prioritization of certain refugee claims], 5(c) [indefinite suspension of Syrian refugee admissions], and 5(e) [case-by-case refugee admissions] of the January 27, 2017 Executive Order on a nationwide basis. All U.S. land and air ports of entry are prohibited from enforcing these portions of the Executive Order until further order from the court.
To date, the U.S. Department of State has confirmed that barring any other issues in the case, provisionally revoked visas have been reversed and are once again valid for travel. All U.S. Customs and Border Protection (CBP) Field Offices have been instructed to immediately resume inspection of travelers under standard policies and procedures. All airlines and terminal operators have been notified to permit boarding of passengers without regard to nationality.
Persons who arrived to the U.S. while the Executive Order was in effect and had their visas physically canceled as a result of this Order will not need to reapply for a new visa and barring any other admissibility issue, will receive an I-193 waiver (Application for Waiver of Passport and/or Visa) upon arrival to the U.S. For those traveling by air, airlines have been instructed to contact CBP to receive authorization to permit boarding.
On February 9, 2017, the Ninth Circuit Court of Appeals, in a per curiam order, DENIED the federal government’s motion for an emergency stay of the TRO barring implementation of President Trump’s Executive Order. Accordingly, until further action by a court, the order barring implementation of the travel and refugee ban remains in place, and all individuals may continue to apply for visas and admission to the United States without regard to nationality. In terms of the next steps? We wait-and-see. The U.S. District Court for the Western District of Washington is moving forward on Plaintiff’s motion for preliminary injunction, although, a hearing has not yet been scheduled. The federal government could also seek intervention through the U.S. Supreme Court; however, President Trump appears to be moving away from the pending litigation, with a planned release of a new Executive Order banning travel from the 7 predominantly Muslim Countries, as recently announced by Homeland Security Secretary John Kelly at the Munich Security Conference held this past weekend (February 17-19, 2017):
The president is contemplating issuing a tighter, more streamlined version of the first Executive Order. I will have, this time, the opportunity . . . work the roll-out plan in particular to make sure that there’s no one in a sense caught in the system moving from overseas to our airports, which happened in the first release.
Despite the issuance of the injunction on February 3, 2017 (which remains in place following the Ninth Circuit’s decision), given the fluidity of the situation and the number of policy/interpretation changes issued since the signing of the Executive Order, all foreign nationals of the 7 designated Countries that are currently in the U.S. are advised to refrain from non-essential international travel. Foreign nationals and Employers of foreign nationals that may be affected by this Executive Order should consult an immigration attorney before traveling abroad for essential or non-essential purposes.
The specifics of the January 27, 2017, Executive Order (and how it was implemented) are as follows:
- Travel Ban. Imposes a 90-day suspension on the entry into the United States of immigrants and nonimmigrants from the seven (7) predominantly Muslim designated countries in the Middle East, excluding persons traveling on diplomatic visas, NATO visas, U.N. transit visas, and international organization visas.
- Suspension of Nonimmigrant and Immigrant Visa processing. In implementing this Order, which is temporarily halted by Court Order, the Department of State suspended visa issuance to nationals of the affected countries “until further notice,” stopping adjudication and processing of visa applications and cancelling interviews at Consular posts. This included the halting by the National Visa Center (NVC) in its processing of immigrant visa applications for persons who are nationals and dual nationals of a restricted designated country.
- Revocation of Nonimmigrant and Immigrant Visas. The Department of State also announced that “all valid nonimmigrant visas” and “all valid . . . immigrant visas” issued to nationals of the 7 affected countries were “hereby provisionally revoke[d],” with specified exceptions for diplomats, international organizations, NATO, and U.N. transits (all nonimmigrant visas).
- Impact on Nonimmigrants in the United States. While it is still unclear whether / how nonimmigrants that were in the U.S. on January 27th when the Order was signed will be treated with respect to their authorized stay, the language in the Order is broad enough to encompass foreign nationals of the 7 affected organizations that (for example) may be currently in the U.S. attending school on a valid F-1 foreign national student visa, or working as a Physician in a medically underserved area on a valid H-1B visa.
- Impact on Immigrants in the United States. When persons with immigrant visas seek entry into the United States they are admitted as Legal Permanent Residents, and thus, have used their immigrant visas and are no longer visa holders. Immigrants already admitted to and currently in the United States prior to January 27, 2017, should not be impacted.
- Boarding. Persons with a nonimmigrant or immigrant visa in a passport from a restricted country will not be allowed to board a plane to seek admission to the U.S., and the visa will likely be provisionally revoked.
- National Interest Exemption: Issuance of Visa / Entry on a case-by-case basis. The Department of State and the Department of Homeland Security have the authority “on a case-by-case basis, to issue [nonimmigrant and immigrant] visas or allow the entry of nationals of [the designated countries] into the United States when it serves the national interest.” CBP has advised that affected persons, who would like to obtain a visa or seek admission to the U.S. under this exemption should contact a U.S. Consulate to request the exemption prior to attempting to board a plane or applying for admission at a land port of entry.
- Dual Nationals. On February 2, 2017, the Department of State confirmed that travel for “dual nationals from any country with a valid U.S. visa in a passport of an unrestricted country is not restricted” from entering the U.S. U.S. Consulates will process visa applications and issue nonimmigrant visas to eligible applicants who apply with a passport from an unrestricted country, even if the applicant holds dual nationality from a restricted country. The CBP’s position, is that the Order applies to dual nationals, but “travelers are being treated according to the travel document they present” at the time of entry. Dual nationals should only present a passport from an unrestricted country at the port of entry.
- Legal Permanent Residents Exempted. On February 1, 2017, the Department of Homeland Security confirmed that the travel ban does not apply to Legal Permanent Residents (e.g. green card holders). To fall within this exemption, the person must already have been admitted to the U.S. as a Legal Permanent Resident (or have adjusted status within the U.S.) because immigrant visas that have been issued, but not yet used to enter the U.S. were provisionally revoked.
April A. Caminez-Bentley, Esq.