President Trump executed an Executive Order (EO) on Friday, January 27th which: (1) instituted a 90-day ban on the entry of temporary visitors and greencard holders from seven predominantly Muslim countries, namely Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen, (2) requires in-person visa interviews for all applicants, (3) requires the creation of uniform screening standards for all visa/entry adjudications, (4) requires agencies to expedite the completion and implementation of a biometric entry and exit program, (5) banned Syrian refugees indefinitely, (6) instituted a 120-day halt of all other refugees, and (7) decreased the overall refugees allowed to be admitted in fiscal year 2017 from 110,000 to 50,000.
Visitors, Students & Workers from 7 Muslim Countries
Regarding the 90-day ban on the entry of temporary visitors and greencard holders from seven predominantly Muslim countries, the President declared in the EO that “the immigrant and nonimmigrant entry into the United States of aliens from [the 7 predominantly Muslim] countries . . . would be detrimental to the interests of the United States.” Additional countries may be added to this list if the Secretary of Homeland Security and the Secretary of State determine that a country fails to provide the U.S. with information deemed necessary to determine an individual’s identity and whether s/he is a security or public-safety threat.
Since issuing this EO, the Department of Homeland Security and the White House Chief of Staff have stated that greencard holders from these seven countries will generally be permitted entry “absent the receipt of significant derogatory information indicating a serious threat to the public welfare.” Thus, greencard holders and U.S. citizens born in these countries are generally admissible.
Regarding all other visitors from these countries, including tourists, students, and workers, all U.S. Embassies and Consulates have been instructed to halt issuing any visas to foreign nationals from these countries. Thus, no such foreign nationals should make any visa appointments or pay any visa fees now, and, anyone who has a visa appointment should not attend it because they will not be admitted into the Embassy or Consulate. This will significantly impact families and U.S. employers. Families may be divided for months. Further, workers may be stranded abroad for months, unable to earn a living to provide for their families, and unable to work on projects for their U.S. employers. Thus, U.S. employers may be unable to complete their assignments and projects on-time and/or on-budget, and may be left without critical staff, with little or no notice.
At least two federal courts, in Massachusetts and in New York, have issued Temporary Restraining Orders to block the detention and deportation of those held with valid visas or status. However, the Department of Homeland Security has stated that it will continue to enforce the EO, regardless of these Court Orders. Accordingly, it is advisable for U.S. employers to halt international travel for foreign nationals from these seven countries, for at least the next 3 months,, and, when that is not possible, to plan ahead regarding staffing needs, and explore whether the foreign national can work remotely abroad for at least a period of time.
In-Person Visa Interviews Required
The EO eliminated the Visa Interview Waiver Program (VIWP) at U.S. Embassies and Consulates, so that, generally all foreign nationals will be required to attend an in-person interview. Previously, interviews would be waived for those deemed low security risk, like children and elderly, and workers who have already been vetted and are merely renewing the same type of work visa. With everyone now having to attend an interview, foreign nationals and employers should plan on much longer visa appointment wait times and processing times, which will likely increase the length of time they must stay out of the U.S. and away from their U.S. jobs. As suggested above, it is advised to limit international travel of all foreign nationals for now, when possible, to decrease the risk of disruption in workflow, among other impacts. When international travel is required, it is advised to schedule the visa appointment online before leaving the US to decrease the amount of time waiting for an appointment while abroad, and build in extra days after the appointment for visa processing. Also, it may be useful for employers to explore telecommuting or remote working situations to allow the foreign national to work abroad while waiting for the visa to be issued.
Creation of Uniform Screening Standards
The EO mandates the creation of uniform screening standards for all those applying for U.S. entry, a visa, or any immigration benefit. The program is directed to include procedures such as a database of identity documents used by applicants to ensure they not being used by multiple applicants, amended application forms to include ways to identify fraudulent answers and malicious intent, a process to evaluate an applicant’s “likelihood of becoming a positively contributing member of society”, and a mechanism to “assess whether or not the applicant has the intent to commit criminal or terrorist acts after entering the United States.” These mechanisms can be subjective, and thus, will need checks and balances built-in to ensure fairness. In addition, these mechanisms will greatly increase processing times at Embassies and Consulates, airports, and USCIS service centers. So, applicants and employers should plan accordingly, including exploring remote work possibilities. They also increase risk in application denials, which could mean that employers will be left without critical personnel for their projects with little or no notice, and with the added cost and burden of replacing them, which can be very challenging for some of these sophisticated, specialized, professional positions.
Creation of a Biometric Entry-Exit Program
The EO requires the creation and implementation of a biometric entry-exit program. In 2006, the Department of Homeland Security implemented a biometric entry program, aimed to locate those who overstay their visas. The Department of Homeland Security has identified many logistical and financial obstacles to the biometric exit program, hindering the ability to create this program thus far, including: (1) the disruption and backlog it would cause for travelers at airports, (2) airports and air carriers refusal to have biometric collection as part of their passenger processing at the departure gate, (3) indecision as to who would be responsible for collecting the data, and (4) the significant funding required to create and implement this program. The EO has not identified ways to overcome these obstacles.
Ban on Syrian Refugees
The EO halts all processing and admission of Syrian refuges indefinitely. The EO “proclaim[s] that the entry of nationals of Syria as refugees is detrimental to the interests of the United States.” Accordingly, the President suspended all Syrian refugee entries until he determined that sufficient changes to the refugee program have been made to be consistent with the national interest. This is not likely to occur in the foreseeable future. Thus, Syrian nationals in the US are advised not to travel internationally. Further, employers should assess how to staff positions currently held by Syrian refugees, in the unfortunate event that s/he is forced to depart the U.S.
Suspend all other Refugees for 120 Days
All other refugee applications and admissions are suspended for 120 days to determine what other procedures are needed to ensure that the refugee does not pose a threat to the security and welfare of the United States. At the end of the 120 days, refugee admissions will only resume for those from countries that have procedures to ensure the security and welfare of the U.S. All refugees are advised not to travel internationally at least for the next 4 months, and ideally for longer. Employers should assess their workforce to see who is in refugee status and take steps to halt all international business travel for those workers, for at least the next 4 months. Employers should also begin considering how to staff positions currently held by refugees, in the unfortunate event that they are forced to depart the U.S.
At least two federal courts, in Massachusetts and in New York, have issued Temporary Restraining Orders to block the detention and deportation of refugees. However, the Department of Homeland Security has stated that it will continue to enforce the EO, regardless of these Court Orders.
Decrease Number of Refugees Allowed in FY 2017
In the EO, the President “proclaim[ed] that the entry of more than 50,000 refugees in fiscal year 2017 would be detrimental to the interests of the United States.” This significantly decreased the prior ceiling of 110,000 refugees per year, As of January 20, 2017, the U.S. had already admitted 29,895 refugees. This that only leaves another 20,000 or so refugees for the rest of FY2017. Employers who are considering hiring a refugee from abroad should be aware of this cap because their desired new hire may ultimately be banned once this quota is reached.
Conclusion
All of the above changes are designed to protect U.S. citizens from terrorist attacks and from admission of foreign nationals who “intent to exploit the United States immigration laws for malevolent purposes.” There are many challenges to this EO both in and out of the Courts. So, it remains to be seen as to what will be enforced and how. For now, however, limiting international travel is advised, and employers should assess their workforce to determine staffing and travel needs to minimize disruption to workflow and productivity.
If you have any questions about this e-alert, please contact Berin S. Romagnolo.
This Alert is provided for information purposes only, and does not constitute legal advice. According to Mass. SJC Rule 3:07, this material may be considered advertising. ©2017. Posternak Blankstein & Lund LLP. All rights reserved.
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