President Trump issued three Executive Orders during the first week of his administration to fulfill his campaign promises. During the campaign, President Trump promised to build a wall along the southern border with Mexico and to impose a ban on the admission of Muslims until the new Administration could impose “extreme vetting” of all non-citizens admitted to the United States. A third Executive Order seeks to withdraw federal funding for sanctuary cities. The implementation of these Orders has been uneven, instilling fear and uncertainty among travelers, their employers and families, leading to numerous demonstrations in cities and at airports throughout the country.
While the three orders addressed different aspects of immigration, the most impactful order was the third one signed and immediately implemented on the late afternoon of Jan. 27, 2017. This order, entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” suspended immediately the admission of all refugees for 120 days, Syrian refugees indefinitely and it prohibited the admission of all citizens from seven designated countries (Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen) with both immigrant and nonimmigrant visas for 60 days. Certain diplomatic visa holders were exempted from the Executive Order. While the Order provided for individual exemptions on a case by case basis, in the national interest, the standards and the procedures to apply for this exemption were not identified in the Order.
The Order was signed at 4:42 on a Friday afternoon, and the impact was immediate. Individuals arriving shortly after the signing of this order had been in the air when it was signed and were refused admission, held at airports or forcibly returned. Lawyers arrived at JFK Airport almost as quickly as the Order was signed, and the first challenge was filed in a Federal Court in Brooklyn within hours. Later that evening, the first of several Federal Court orders temporarily suspending various parts of the order was signed by a Federal District Judge. The State Department issued an order that all immigrant and nonimmigrant visas for citizens of the seven countries were revoked. This order was also challenged in Federal Court lawsuits.
By the end of the first week, several federal courts across the country had issued orders partially blocking parts of the Order as it applied to those with otherwise valid visas, refugees in route when the order was signed and permanent residents returning to the United States following a temporary visit abroad. Following the first flurry of court orders, the White House and then Department of Homeland Security first announced that waivers would be granted to Permanent Residents, and then announced that the ban did not apply to Permanent Residents.
On Friday, Feb. 3, 2017, the Federal District Court in Seattle issued a Temporary Restraining Order blocking the provisions of the Executive Order pertaining to citizens of the seven designated countries, refugees and Permanent Residents. The Court found a likelihood the States of Washington and Minnesota would prevail on the merits challenging the Executive Order and set an expedited briefing schedule. The 9th Circuit Court of Appeals declined to set aside the District Court’s injunction the following day. We anticipate that later this week there will be further activity in this litigation. Until further orders, the Department of Homeland Security will not enforce the Executive Orders, and affected foreign citizens are free to travel unless and until the Courts issue an order reinstating the restrictions.
The uncertainty surrounding this Executive Order is likely to continue as this controversy is addressed by the Courts. Ultimately, the issues will likely be determined by the Supreme Court, although this could take several months, if not years. Until there is more certainty, or a final resolution, we recommend that employers cease all international travel of their employees who are citizens of the seven identified countries to the extent possible. If travel is necessary, legal counsel should be sought at the time of the travel to determine the risk factors of exclusion upon return to the United States.
A separate provision of the Executive Order terminates the interview waiver provisions of the State Department practice regarding applications for nonimmigrant (temporary) visas. Current policy permits the Consular offices to re-validate a nonimmigrant visa in the same visa category when the previous visa expired within the year prior to the new application. The elimination of this ability to waive the interview is expected to increase waiting times for visa appointments at busy posts. However, consular posts in India have stated that they are still processing visas pursuant to the visa waiver policy. We are not certain how long this may last, or if or when the policy may change to implement the Executive Order. Thus, individuals who need to apply for a visa abroad before returning should plan sufficient time for an interview should it be necessary.
The frenzied manner in which this Executive Order was issued and implemented has led to numerous rumors about future Executive Orders. Most important to employers and employees in nonimmigrant status is a leaked draft version of an Executive Order addressing the H-1B visa. This draft does not include specific proposals or limitations on the H-1B visa, but instead instructs USCIS to review the regulations to improve the visa consistent with the goals of the new Administration. President Trump, consistent with his campaign rhetoric thus far, has placed severe limitations on immigration and this draft Order has created a great deal of concern. There have been several proposals in the Congress for amendments to the requirements for the H-1B visa, lending greater alarm.
While it is not clear whether the statute or the regulations will be amended, and if so, whether it will become harder to qualify for the H-1B visa, any changes in the statute or regulations will take time and will not become effective immediately. The rapid and chaotic pace of change over first two weeks of the Trump Administration, however, should not be repeated for changes to the H-1B visa or employment-based applications for permanent residence.