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What Employers Should Know About How the January 27 Executive Order Reshapes the Current State of Immigration in the United States

January 31, 2017

Background
On January 27, 2017, President Trump signed an Executive Order (EO) dramatically reshaping the current state of immigration in the United States. The EO's main points are:

  • A 90-day travel ban on the issuance of U.S. visas and entry to the United States for any individual who is a national of the following "designated countries": Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen.
  • The immediate halting of the U.S. Refugee Admissions Program (USRAP) for a period of 120 days.
  • A review by the Department of Homeland Security of the information needed from foreign countries to accurately determine the identity of individuals seeking a visa or any other form of entry into the United States.
  • The implementation of "uniform screening standards for all immigration programs."
  • Requiring all individuals to apply for visas in person instead of "mail-in" or drop-box applications at U.S. Consulate posts abroad.

As mentioned above, the 90-day travel ban halts the issuance of every type of visa to any citizen of the seven designated countries. This includes visas such as Bs, Fs, H-1Bs, green cards and more. Further, officers at U.S. airports, pre-flight inspection at foreign airports and border crossings are not permitted to allow any individuals from the designated countries onto their flight or into the United States, even if they have a valid visa. However, individuals with U.S. permanent resident "green cards" will be allowed entry, although they may be subject to extra questioning as deemed necessary by Customs and Border Patrol (CBP) officials. With regard to individuals currently in the United States, the EO only impacts those who are applying for nonimmigrant and immigrant visas, seeking entry or currently applying for an immigration benefit.

Definition of National
A national is an individual who is a citizen of a particular country. Specifically, a person who is entitled to have that country's passport. A national may also include an individual who was not born in the country, but whose parents were born in the country.

Dual Nationals
Although not confirmed, individuals should assume that the travel ban applies to dual nationals. In addition, individuals should also assume that the ban applies to people who were born in one of the designated countries, but may no longer hold a citizenship from that country.

Recent Travels
The ban does not apply to individuals who recently traveled to one of the designated countries, unless that individual is a national of the designated country. However, individuals traveling to one of the seven countries will have an increased likelihood of being questioned by CBP officials about their visit to the designated country. The questions asked may include: why was the person in the country, for how long, with whom did they stay, etc.

Refused Entry
Individuals from the seven designated countries who are refused entry by CBP officials at U.S. borders or international airports will be instructed to return to the destination from which they came on the next outbound flight. During the time these individuals are waiting for their flight to return to their original destination, or while they wait for a possible waiver that would allow their entry into the U.S., they will be held or detained by CBP at the point of entry which they arrived. These individuals may not be able to make phone calls, send emails or text messages. In addition, these individuals do not have the right to an attorney. However, in certain cases, CBP officials may make legal representation possible.

Consulates
U.S. consulates around the globe are cancelling nonimmigrant and immigrant visa interviews for any individuals who are nationals of the designated countries. Specifically, the American Immigration Lawyers Association received reports that on January 27, 2017, the day the EO was signed; all U.S. embassies and consular posts were to immediately suspend the issuance of nonimmigrant and immigrant visas for nationals from the designated countries.

Applications currently pending before the U.S. Citizenship and Immigration Services (USCIS) were not mentioned by the EO. Individuals can assume that USCIS will suspend the review and adjudication of applications by individuals from the designated countries.

Length of the Travel Ban
Although the EO states that the travel ban will be in place for ninety days, the ban will not be lifted automatically at the end of the 90-days. Rather, DHS will report to the President what countries have provided information necessary to verify the identities of individuals attempting entry into the United States. If the aforementioned country has not adequately complied with the reporting requirements, the country will have 60 days to provide the requested information or the travel ban will become indefinite.

Exceptions to the Ban
On January 28, 2017, one day after the EO was signed into place, the U.S. District Court for the Eastern District of New York issued an emergency stay of specific provisions from the EO. Specifically, the court held that U.S. government is barred from preventing the admission of: refugees seeking admittance as part of the USRAP and holders of valid immigrant and nonimmigrant visas from the seven designated countries. In addition, the EO has an exception for individuals from the designated countries who are applying for A, G, NATO, C-2 and C-3 visas.

The Visa Interview Waiver Program (VIWP)
The Order also suspends the VIWP for nonimmigrant visa applicants. Certain U.S. embassies and consular posts would waive the interview requirement for visa applicants renewing nonimmigrant visas if applying in the same classification within 12 months of the initial visa expiration date. Following this EO, most nonimmigrant visa applicants will be, going forward, required to schedule and attend an in-person interview in order to renew their visas. 

U.S. Refugee Admissions Program
The travel ban applies to all refugees being processed overseas and seeking admission into the United States. For the majority of refugees, the ban shall last at least 120 days. However, for Syrian refugees, there is no designated amount set on the length of the ban. In addition, the EO states that refugees are to be prioritized based on religious-based claims. This means that if the refugee's religion is a minority religion in the individual's country of nationality, that individual is to be prioritized over those refugees from the religious majority. Finally, the EO states that refugee admission will be decreased to only 50,000 individuals for fiscal year 2017, after the completion of the ban.

Recommendation
Given the expected additional scrutiny at U.S. ports of entry, we recommend that all nonimmigrants double check all their respective documents to ensure smooth admission into the United States. Specifically, one should assure that passports are valid, U.S. visa stamps issued by consular offices abroad are valid, and one should have in hand the original Notice of Action issued by USCIS granting status as a nonimmigrant worker.

Legal intern Karim Sabbidine co-wrote this article.

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