Executive Summary: President Trump’s Executive Order (“Order”) of January 27, 2017, “Protecting The Nation From Foreign Terrorist Entry Into The United States,” could have a significant impact on the American immigration system. Employers should be aware of the business impact of the rule and the changes that could affect any workers who are not U.S. citizens, particularly those who depart the U.S. and seek to re-enter.
Travel Ban Implemented
The Order implements a 90-day entry ban from the date the Order was signed on January 27, 2017, for nationals of Iraq, Syria, Sudan, Iran, Somalia, Libya and Yemen. The Order targets “nationals of countries of particular concern” for suspension of visa and other immigration benefits, but it does not specifically define “national.” Based on the initial days of the Order’s implementation, it appears that “national” could be interpreted broadly to include not just a person seeking entry to the U.S. holding a passport from a banned country, but also those born in a banned country, long-term residents of a banned country, or those who have ever held a passport or had a claim to citizenship in a banned country.
The Order suspends visas and immigration benefits for nationals of the seven listed countries to allow the Department of Homeland Security (DHS) and the Department of State (DOS) to review the sufficiency of information provided by foreign countries about their citizens and existing U.S. vetting systems that support U.S. visa processing and immigration benefits. The Order allows the President to add countries upon the recommendation of the Secretary of Homeland Security and Secretary of State. More countries could be added without warning to the public and with no grace period, so travelers in transit could be affected.
It was unclear to what extent Lawful Permanent Residents (aka “LPRs” or “green card holders”) holding passports from the affected countries would be impacted by the ban. As of January 29, 2017, the DHS website states, “the entry of lawful permanent residents is in the national interest. Accordingly, absent significant derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status will be a dispositive factor in our case-by-case determinations.” The DHS website also states that Lawful Permanent Residents of the United States traveling on a valid I-551 will be allowed to board U.S. bound aircraft and will be assessed for exceptions at arrival ports of entry, as appropriate.
Since the term “national” is not specifically defined, anyone who is a citizen of or has ties to a banned country should evaluate the necessity of leaving the U.S. This includes “nationals” of the seven banned countries who are traveling on nonimmigrant visas (B-1/B-2, H-1B, L-1, TN, etc.), those traveling with visa waiver (ESTA) who have traveled to a banned country or have ties there, and intending immigrants and others seeking to enter with Advance Parole. Such individuals should be particularly cautious and even avoid departing the U.S. while we wait for clarity. There have been claims of visa holders being asked to surrender their valid visas, and of visas being cancelled or revoked without warning. Additionally, in the first few days, we have heard of people who are not nationals of the banned countries being detained or denied entry after traveling from or through a banned country.
Impacts to Visa Processing
The Order announces that the government will devise and implement new “Uniform Screening Standards” on all immigration programs and will provide the President an initial report within 60 days of the issuance of the Order.
Apart from this initiative, the Order immediately suspends the Visa Interview Waiver Program, thereby ending efficient consular visa adjudication measures, such as waiver of in-person visa interviews and mail-in procedures for visa renewal applications that are widespread at U.S. Consulates in India, South Korea, Brazil, and other countries. Consequently, we anticipate increased wait times for visa interview appointments at the U.S. consulates around the world and an increase in post-interview visa processing times.
We also expect changes to the standard DS-160 online visa application required for anyone applying for a visa at any U.S. consulate around the world. These changes could cause major backlogs in scheduling a visa interview and could make the visa interview process much lengthier and more unpredictable than it was before.
The Order also announces the review of visa reciprocity arrangements between the U.S. and other countries. As a result, we may see changes in the duration and fees associated with some U.S. visas.
Impacts to Non-U.S. Citizens Currently in the U.S.
The Order affects immigration benefits extended by DOS and DHS (which includes USCIS, the agency which processes immigration benefit petitions filed within the U.S.). It is too early to say how stateside processing of benefits will be handled, including temporary nonimmigrant visa petitions (e.g. H-1B, L-1, TN, O-1 etc.), Employment Authorization Documents including OPT work authorization to F-1 students, and approval of I-485 Adjustment of Status, among others.
Suspension of Refugee Program
The U.S. refugee program has been suspended for 120 days. The number of refugees the U.S. will accept this year has been cut by more than half. The Order also includes a permanent ban of Syrian refugees.
Legal Challenges Underway
Multiple lawsuits have been filed in federal courts around the country challenging the legality of the Order and seeking clarification of the Order. Several stays affecting multiple components of the Order have been issued, and it is unclear how these will affect the implementation of the Order.
Employers’ Bottom Line
The January 27, 2017, Executive Order will have a significant impact on U.S. immigration law, but the scope of the impact and the ability to enforce the Order are difficult to assess at this stage of implementation.
So what should employers do?
Notify workforce about the travel ban and cancel international business travel for any affected workers
The Order impacts companies employing foreign workers, regardless of whether their workers are from the banned countries. Such companies should notify their entire workforce about the 120-day refugee travel ban and 90-day travel ban on nationals from the affected countries, noting that the term “national” could be interpreted broadly.
In addition, before sending any non-U.S. citizen employee abroad on business, a company should ascertain the citizenship(s), national origin, and ties to any of the banned regions that an employee who is required to undertake work travel may have. An employer can check whether an employee is a U.S. citizen by reviewing his or her I-9 form, which records whether the employee is a U.S. citizen, lawful permanent resident or alien with temporary work authorization. This inquiry, however, should be directed solely to the employees who are required to travel outside the U.S. for work, since it could otherwise be viewed as discriminatory. As a best practice, employers should limit the dissemination of the information regarding the citizenship and national origin of the employees to only those members of management that need to know. Since the Order did not specifically define “national,” the ban could potentially impact more than just citizens of the banned countries. It is critical to note that the ban is not explicitly targeted at Muslims, and employers must avoid inquiring about their employees’ religion or beliefs.
There are reports about confusion within U.S. Customs and Border Protection about the scope of and how to implement the Order, which could result in differing implementations of the Order at U.S. airports.
Evaluate the necessity of filing a visa application overseas at a U.S. consulate versus Stateside Immigration Benefit processing
Companies employing foreign workers of any nationality on visas should evaluate the necessity of any international travel planned for the purpose of applying for visas at U.S. consulates around the world. With the immediate elimination of efficient measures like in-person visa interview waivers and mail-in visa renewal application procedures for some individuals, we anticipate widespread delays and backlogs to schedule interview appointments and to process visas at U.S. consulates abroad. Therefore, companies should evaluate any available stateside options for extending visa status to avoid international travel. Please note, USCIS may suspend stateside processing of cases filed by affected nationals, and the New York Times reported that this may already be in effect.
It is too early to know the full ramifications of the Order for any non-U.S. citizen employees, but we will keep you posted on any developments. Should you have any questions about the Order or how it may affect your company and employees, please contact Geetha Adinata, gadinata@fordharrison.com, or the FordHarrison attorney with whom you normally work.