We are providing this alert to update our clients on the Executive Order signed by President Trump on Friday, January 27, 2017. This alert also summarizes leaked draft Executive Orders, which may be signed by the President in the coming days. These draft Executive Orders may also have significant impact foreign workers and their employers.
As previously reported, the signed Executive Order imposes a suspension of at least 90 days on visa issuance and entry of people from seven designated countries (lraq, Iran, Syria, Sudan, Libya, Somalia, and Yemen). The Executive Order also imposes a suspension of all refugees for at least 120 days, and suspends the admission of Syrian refugees indefinitely. The Executive Order further suspends the Visa Interview Waiver Program for nonimmigrant visa renewals from all countries. We provided an analysis of the Executive Order last week and provided updates on implementation of the Executive Order over the last few days. Below we provide a comprehensive overview of the signed Executive Order incorporating all of the updates.
SIGNED EXECUTIVE ORDER
IMPORTANT UPDATE (Feb. 5, 2017): A FEDERAL DISTRICT COURT ISSUED A TEMPORARY RESTRAINING ORDER (TRO) ON FRIDAY EVENING, FEBRUARY 3, 2017, WHICH TEMPORARILY BLOCKS TRUMP'S TRAVEL BAN APPLICABLE TO NATIONALS FROM THE SEVEN DESIGNATED COUNTRIES LISTED BELOW, AS WELL AS THE BAN APPLICABLE TO REFUGEES FROM ALL COUNTRIES. THIS TRO COULD BE OVERTURNED BY THE COURT OF APPEALS AS EARLY AS MONDAY, FEBRUARY 6, 2017. IF THE TRO IS OVERTURNED, THE BAN WOULD LIKELY GO BACK INTO EFFECT IMMEDIATELY.
Suspension of Visa Issuance & Admission of Foreign Nationals from Certain Muslim Countries
Pursuant to the signed Executive Order entitled “Protecting the Nation from Foreign Terrorist Entry in the United States,” foreign nationals from Iraq, Iran, Syria, Sudan, Libya, Somalia, and Yemen will not be allowed to enter the United States for at least 90 days. The Department of State (DOS) has suspended the issuance of visas to applicants from these countries.
On Sunday, January 29, 2017, the Department of Homeland Security (DHS) clarified that returning lawful permanent residents from the seven designated countries are in the national interest of the United States and are eligible for waivers to enter the country, absent derogatory information indicating a serious threat to U.S. public safety and welfare. Moreover, DHS indicated that while the Executive Order applies to dual nationals/citizens who hold passports from both a designated country and a non-designated country, dual nationals/citizens who present passports from a non-designated country will be admitted. For example, if a foreign national presents a Canadian passport, rather than an Iranian passport, that is how he/she will be processed for entry.
Within 30 days of the Order, the Secretary of the DHS, in consultation with the Secretary of State and the Director of National Intelligence, is required to submit a report to the President on information needed from foreign governments. Nationals of countries whose governments do not adequately comply could face further obstacles to visa eligibility, U.S. admission, and other immigration benefits. The Secretary of State and the Secretary of the DHS may submit to the President the names of any additional countries recommended for similar treatment.
Suspension of Nonimmigrant Visa Interview Waivers
The Visa Interview Waiver Program, which currently allows certain eligible applicants to bypass an interview with a consular officer when applying to renew an existing visa, e.g. the H-1B worker visa, has been immediately suspended, per the Order. All foreign nationals seeking a nonimmigrant visa are required to attend an in-person interview, subject to statutory exceptions. This change is expected to significantly increase wait times to schedule a visa appointment, as well as to increase processing times in the adjudication and issuance of nonimmigrant visas. Any foreign national planning to travel abroad in the near future, who does not already possess a valid nonimmigrant visa, should be prepared for potential delays in visa issuance and admission process to the United States.
Impact on Refugees
The Executive Order suspended entry of refugees from all countries for at least 120 days, and reduced the number of refugees permitted to enter the United States for the fiscal year of 2017 from 110,000 to 50,000. Additionally, the Executive Order prohibits the entry of Syrian refugees to the United States until further notice.
UNSIGNED DRAFT EXECUTIVE ORDERS
Three additional unsigned draft Executive Orders were recently leaked. If signed by the President, these Orders will impact foreign workers and their employers. An outline of each draft Executive Order follows below. Please note that these are unsigned drafts, and have yet to go into effect as of the time this alert was published.
Changes to Employment, Student, and Visitor Visa Categories
The draft Executive Order entitled “Protecting American Jobs and Workers by Strengthening the Integrity of Foreign Worker Visa Programs” intends to reexamine current immigration regulations and policies with the goal of protecting U.S. workers and current lawful residents. The order would direct the Department of Homeland Security, Department of State, and Department of Labor to review current regulations authorizing foreign nationals to work in the United States through parole and nonimmigrant visas (e.g. B-1, E-2, H-1B, H-2A, L-1, J-1, and F-1/OPT), and its impact on the U.S. workforce. Within specified time periods, the appropriate agencies would be required to propose regulatory reforms to nonimmigrant visa categories.
This particular draft Executive Order received significant news coverage reporting on its perceived impact on H-1B workers. However, the draft Executive Order does not contain any language that would immediately affect or change the above-mentioned nonimmigrant visa categories, and should not be confused with the proposed H-1B bill that was recently introduced by Representative Zoe Lofgren.Should this draft Executive Order be put into place, any proposed regulation must go through rulemaking process and is subject to Congressional approval.
Rescission of DACA
The draft Executive Order entitled “Ending Unconstitutional Executive Amnesties” indicates that Trump would rescind Obama’s Executive Order on Deferred Action for Childhood Arrivals (DACA), as well as its counterpart, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). The draft Executive Order specifically seeks to cease processing of new DACA applications and will phase out work authorization by prohibiting employment authorization renewals. Employment Authorization Documents (EADs) issued to DACA recipients would remain valid until the date of expiration. Importantly, DACA recipients would not be granted advance parole in the leaked draft. Rescission of the DAPA program comes as no surprise, as a federal district court has already issued an injunction to halt the program on February 16, 2015.
Enforcement of Public Charge Provisions
The draft Executive Order entitled “Protecting Taxpayer Resources by Ensuring Our Immigration Laws Promote Accountability and Responsibility” would direct the Department of Homeland Security to review existing immigration policies and guidance concerning “public charge” inadmissibility issues. The draft Executive Order would also enforce reimbursement from all Affidavit of Support sponsors for the costs of federal means-tested benefits provided to sponsored immigrants. This draft Executive Order would not directly impact employment-based immigration cases.
Resources for Clients
We understand that many of our clients are concerned with the potential impact of these Executive Orders on employees and their families. We are providing the following resources on our website related to the ongoing changes in U.S. immigration policy: