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President Trump’s Executive Orders on Immigration President Trump’s Executive Orders on Immigration

President Trump’s Executive Orders on Immigration

As promised throughout the presidential campaign, President Trump signed a number of immigration-related Executive Orders during his first week in office. Three such orders have been signed relating to refugees and other foreign nationals from the Middle East, the visa interview waiver program, border security and interior enforcement of immigration laws. An employer-focused summary of these signed Executive Orders is provided below, along with a summary of three more draft Orders that have not yet been issued (including one with potentially far reaching implications for employment based immigration, see item IV). Please note, this discussion applies to all foreign nationals regardless of country of birth or citizenship unless specifically noted otherwise. As this fluid situation continues to evolve, please continue to check our website for updates.

I.Protecting the Nation from Foreign Terrorist Entry into the United States
Signed January 27, 2017

Suspension of visas and immigration benefits for certain foreign nationals
The President’s Executive Order suspends visa issuance, entry into the U.S. and provision of immigration benefits for 90 days for foreign nationals from the following countries: Iran, Iraq, Libya, Sudan, Somalia, Syria and Yemen[1]. Secretaries of State and Homeland Security must report progress to the President at 30, 60, 90 and 120 days from date of the Executive Order. This Order affects visa applicants pursuing non-immigrant or immigrant (green card) visa processing abroad at a U.S. Consulate or Embassy, as well as those seeking entry into the U.S. that have already been issued visas before the date of the Order. It also affects those with pending applications and applications that need to be filed in the U.S. to properly maintain lawful immigration status, including requests for extensions of stay. Legal challenges have already been initiated on behalf of applicants denied entry into the U.S., and federal judges have issued stays on the order. The Department of Homeland Security has reversed its initial position and is now confirming that “the entry of permanent residents is in the national interest” but their entry into the U.S. will be evaluated on a case by case basis. All of this is a good reminder of the fluidity of the situation, as well as the broad, non-reviewable discretion and authority our U.S. port of entry officers hold. As such, we are strongly recommending that foreign nationals from the current list of identified countries avoid all international travel, including permanent residents of the United States. While the current list of affected countries is limited to these seven, the White House has suggested that the list of countries may be expanded. As a result, there will be some employees that have reasonable fear and anxiety related to international travel and those instances should be carefully evaluated with legal counsel on a case by case basis. Foreign nationals from the Middle East and/ or predominantly Muslim countries should exercise caution in traveling internationally and all foreign nationals traveling internationally and in need of new visa stamping should expect additional delays at U.S. Consulates worldwide.

Global Review of Information Needed from all Countries for U.S. Visa Issuance
The Executive Order also calls for the Secretaries of Homeland Security and State and the Director of National Intelligence to conduct a country by country evaluation of the information needed to adjudicate visas, admissions and immigration benefits to confirm applicant identity and security and public safety threats. Within 30 days, a report must be sent to the President with conclusions and a list of the countries that do not provide adequate information for immigration adjudications. Identified countries will be provided 60 days to start providing such information. After 60 days, a list of countries will be recommended for inclusion in a Presidential Proclamation prohibiting entry of foreign nationals from those countries that have not complied. At any point, more countries can be recommended for inclusion according to the order. Based on this, the suspension of visa and other immigration benefits could be extended and expanded beyond foreign nationals from the initial seven countries identified above.
Uniform Screening Standards for all Immigration Programs
The Executive Order additionally directs multiple federal agencies to implement a uniform screening standard and procedure to include in-person interviews, a database of identity documents, and amending application forms to identify “fraudulent answers and malicious intent”; improve identity confirmation of applicants and evaluate an applicant’s “likelihood of becoming a positively contributing member of society” and ability to “make contributions to the national interest”; and assess whether an applicant has “intent to commit criminal or terrorist acts after entering the United States.” Affected agencies must report to the President at 60, 100 and 200 days from date of Executive Order. Many of these screening and vetting procedures are already in place, and the additional screening required under the Order will most certainly result in further delays and backlogs, particularly as related to ascertaining subjective qualifications related to contributions to society and in the national interest (both of which would, in all likelihood, require Congressional action).
The President’s Executive Order suspends the U.S. Refugee Admission Program (USRAP) for all nationalities for 120 days and for Syrians indefinitely. The Order reduces the total number of refugees from 110,000 to 50,000 for the balance of 2017. Please note, following the events of 9/11, USRAP was suspended for less than three months and has been suspended in other limited instances in response to specific national security threats. The current USRAP program requires background checks, biometrics, medical screening and in-person interviews.
Suspension of Visa Interview Waiver Program
At the discretion of U.S. Consular posts, in-person interviews are occasionally waived for low-risk travelers who have already been vetted by the U.S. State Department and intelligence agencies. This program is generally limited to employment-based temporary workers who are seeking a visa renewal in the same visa class. The President’s Executive Order immediately suspends the interview waiver program while expanding the Consular Fellows Program in an effort to combat the inevitable delays for visa interview appointments. In any event, foreign nationals in need of new or extended visa stamps should expect delays in visa processing times at U.S. Consulates worldwide and allow for maximum flexibility in returning to work in the U.S.
Please note, this is a suspension of visa interviewing at Consulates only. This order does not relate to the Visa Waiver Program (or ESTA) which enables foreign nationals from a limited number of countries to enter the U.S. temporarily for a period of up to 90 days without a visa and includes much of Western Europe, Japan, Australia, etc. There has been discussion by the administration to suspend or limit the Visa Waiver Program but that has not yet come to fruition.
Visa Reciprocity
Terms of nonimmigrant visas are the result of visa reciprocity agreements the U.S. maintains with countries worldwide. The Executive Order calls on the Secretary of State to evaluate all agreements to ensure reciprocity for Americans seeking visas abroad. As such, there may be changes to the U.S. visa system with respect to visa validity period, fee schedule or other treatment.
II. Border Security and Immigration Enforcement Improvements
Signed January 25, 2017
This Executive Order is likely the most recognizable and most anticipated, having been discussed throughout the Presidential campaign. The Order calls for construction of a physical wall along the Southern U.S. border, as well as an increase in detention facilities and border patrol agents. Appropriations will need to be considered by Congress to the extent costs exceed current agency resources. Additionally, the Order empowers state and local law enforcement to enforce federal immigration laws. Some law enforcement agencies have been reluctant to enter the federal immigration enforcement fray due to the notorious complexities of the U.S. immigration system and out of concern that it will inhibit their ability to advance community policing priorities. The Secretary of Homeland Security and the Attorney General must report progress within 90 and 180 days, respectively.
III. Enhancing Public Safety in the Interior of the United States
Signed January 25, 2017
This Executive Order confirms the administration's immigration enforcement priorities, including removal of criminal aliens and other removable aliens under an expansive definition and reiterates the Executive Branch’s intention to empower state and local law enforcement to act as federal immigration officers. The Order also calls for collection of fines and penalties from unlawfully present non-citizens and “those who facilitate their presence" within one year, and which could include more aggressive pursuits of sanctions against employers employing undocumented workers (likely via I-9 employment verification audits).
Sanctuary Cities
While sanctuary cities are not currently defined by federal law, this provision calls for elimination of federal funding to sanctuary cities (other than for law enforcement purposes). Sanctuary cities across the country have indicated their intention to retain their status as a sanctuary for immigrants and will continue to limit their level of cooperation with federal immigration authorities. The arguments in support of sanctuary cities often center around the anti-commandeering doctrine of the 10th Amendment of the U.S. Constitution and specifically, the costs to local and state governments in assisting the federal government with lengthy detention of undocumented aliens. In addition, sanctuary cities often cite community policing goals and objectives to explain their apprehension in aggressively participating in federal immigration law enforcement priorities. State and local police are obligated to share information and cooperate with federal law enforcement, however. The level of required cooperation and the President’s ability to define that cooperation remains to be seen.
In addition to these signed Executive Orders, three additional Executive Orders relating to immigration have been leaked, and their status remains pending:
IV. Protecting American jobs and workers by strengthening the integrity of foreign worker visa programs
This extensive proposed Executive Order focuses on employment-based immigration and would require the following of the Department of Homeland Security (including Citizenship and Immigration Services):
  • Directs the Secretary of Homeland Security to review all employment based immigration regulations within 90 days to determine which "violate immigration laws or are otherwise not in the national interest and should be rescinded"
  • Requires consideration of a "more efficient" H-1B visa allocation process to ensure beneficiaries are the "best and the brightest"
  • Within 180 days of the Order, begin site visits at L-1 visa worksites and develop a plan to expand site visits for all employment based visa programs within 2 years
  • Within one year, establish a commission or advisory committee to analyze current immigration policies and the impact on society, the economy, U.S. workers and foreign and national security interests. Provide recommendations for making U.S. immigration policy better serve the national interest and recommend changes to move toward a merit based system
  • Propose regulation to reform F-1 Optional Practical Training
  • Propose regulation to comprehensively clarify permissible activity for business visitors and tourists
  • Within 90 days, submit options for improvements to the H-2A program for agricultural program
  • Within 90 days, submit options to expand the E-verify program including conditioning immigration benefits on participation in E-verify
  • Within 30 days, improve the immigrant visa allocation
  • Propose regulations to reform the E-2 treaty investor visa category
  • Propose regulations to reform the J-1 summer work travel visa program
Likewise, the Secretary of Labor shall:
  • Initiate investigation into any injury to U.S. workers caused by employment of nonimmigrant foreign workers
  • Within 9 months, provide report to President on actual and potential injury to U.S. workers caused, directly or indirectly, by nonimmigrants in H-1B, L-1 and B-1 categories
V. Ending Unconstitutional Executive Amnesties
This Executive Order, if signed in its current form, would rescind the Obama Administration's Deferred Action for Childhood Arrivals (DACA) program. The practical effect of this would be the end of employment authorization upon expiration of any current Employment Authorization Document (EAD) issued to a DACA recipient and subjecting them to immediate removal from the U.S. Employers currently employing DACA recipients pursuant to a valid EAD should continue to do so. Termination of employment based on the possibility of future rescission of work authorization would likely run afoul of the anti-discrimination provisions of the Immigration Reform and Control Act.
VI. Protecting taxpayer resources by ensuring our immigration laws promote accountability and responsibility
This proposed order relates to revisions to public benefits the immigrant community may and may not qualify for, as well as numerous reports related to the costs of the U.S. immigration system.
Needless to say, the U.S. immigration system continues to be in constant evolution. It is very likely that many of the provisions called for by the President will be subject to Congressional review and intervention. Judicial challenges have already begun and are likely to continue. While the unpredictability of our U.S. immigration system may continue for some time, employers are well advised to recall their ongoing obligations under existing federal law, including Title VII and the anti-discrimination provisions of the Immigration Reform and Control Act. In addition to a national dialogue about what we want our immigration system to be, this federal issue is also a part of the ongoing separation of powers discussion and limitations on the Executive Branch. Now more than ever, it is imperative that employers who participate in the U.S. immigration system share their experiences with their members of Congress.

We will continue to monitor and keep you advised of this quickly evolving situation. To the extent you have unique or individual circumstances you would like to discuss, including urgent personal or business travel, I-9 employment verification compliance or your experiences with the employment-based immigration system, please contact Jenifer M. Brown or Christl Glier at your convenience.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances. 
[1] The Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 also implicated these same seven countries in a more limited fashion.  The Visa Waiver Program allows citizens of certain qualifying countries to enter the U.S. temporarily as a visitor without a visa (largely limited to Western Europe).  Immediately following the terrorist attack in Paris in November 2015, the Visa Waiver Program was no longer available to dual citizens of a VWP country and Iran, Iraq, Sudan or Syria.  It also restricted the VWP for all travelers from VWP qualifying countries who had traveled to Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen on or after March 1, 2011.
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