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Executive Orders Regarding Immigration

February 2, 2017

In response to the executive order issued this past week as well as related concerns about changes in the administration of existing programs, Shipman & Goodwin’s Immigration Law Practice Group has formed an interdisciplinary task force to assist our clients with addressing the effects of this order and anticipated future orders on their employees, students and general business practices. Because of its scope, this executive order, as well as the two that have preceded it, has had an immediate and profound impact on all our clients, individual or institutional, public or private, national or international, regardless of their size, mission, location, or scope of operation. This client alert provides some basic analysis of this executive order and highlights concerns raised by the order.  Although the Administration has issued some clarification of the order, we have received many reports of differing interpretations at ports of entry. Several courts have issued temporary injunctions limiting enforcement of parts of the order. Drafts of potential additional orders are being circulated in news media. In light of the complexity of our immigration laws and regulations, both news and social media reports contain inaccurate statements.  In addition, many immigration issues are fact specific. To obtain advice from our task force, please contact:

Brenda A. Eckert at (860) 251-5712 or beckert@goodwin.com
Ashley E. Mendoza at (860) 251-5018 or amendoza@goodwin.com
Linda L. Yoder at (860) 251-5717 or lyoder@goodwin.com
Michael Chase at (860) 251-5194 or mchase@goodwin.com
Benjamin FrazziniKendrick at (860) 251-5182 or bfrazzinikendrick@goodwin.com

Summary of Executive Order Protecting the Nation from Foreign Terrorist Entry

On January 27th, President Trump issued an executive order entitled “Protecting the Nation from Foreign Terrorist Entry” which:

  • Suspends the U.S. Refugee Admissions Program for 120 days with possible exceptions to be made on a case-by-case basis: if it is in the national interest; if the person does not impose a risk and is a religious minority facing religious persecution; if the person’s admission is required to conform U.S. conduct to an international agreement; or when the person is already in transit to the U.S. and denying admission would cause a hardship
     
  • During the current fiscal year, reduces the admission of refugees to the U.S. from the current level of 110,000 set by the Obama administration to 50,000
     
  • Directs the Department of Homeland Security (“DHS”) to determine the extent to which state and local jurisdictions may have greater involvement in determining the placement or resettlement of refugees in their jurisdictions
     
  • Suspends the admission of Syrian refugees indefinitely until the President determines that sufficient changes have been made to U.S. admissions processes to ensure that the admission of Syrian refugees is in the national interest
     
  • Bans the entry of nonimmigrants (individuals coming to the U.S. temporarily) and immigrants (individuals coming to reside permanently in the U.S.)[1] for at least 90 days for nationals of seven designated countries: Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen
     
  • Calls for the exclusion of individuals who would “place violent ideologies over American law” or “engage in acts of bigotry or hatred” including “honor” killings, other forms of violence against women, or the persecution of those who practice religions different from their own
     
  • Suspends the Visa Interview Waiver Program, requiring all nonimmigrant visa applicants to attend an interview unless an interview is not required by statute, thereby increasing the interview wait times and processing times for visa applicants, including for foreign nationals who have already been vetted, have a stable employment and travel record, and are regarded as a low security risk 
     
  • Orders federal agencies to create screening standards and procedures for all immigration benefits to identify fraud and to detect whether a person intends harm
     
  • Directs federal agencies to develop a process to evaluate an individual’s “likelihood of becoming a positively contributing member of society” and “ability to make contributions to the national interest”
     
  • Directs agencies to expedite the completion of and implementation of the biometric entry-exit system at all air, land and seaports of entry in order to better detect overstays.

Examples of Frequently Asked Questions and Emerging Issues

  • We employ a researcher from Iran in our biomedical lab who left the U.S. to present a paper at an international conference in London.  Will this executive order affect his ability to return to the U.S.?  What are my rights and obligations as an employer if he advises me that he will be unable to return to the U.S. indefinitely? Can I fill his job? 
     
  • Foreign students, some of whom are from one of the seven designated countries, are enrolled in our school on F-l visas and plan to travel abroad during the upcoming school break.  What advice should we provide these students and their parents? Does this advice vary based on their citizenship?
     
  • A physician on our staff who is a national of India left to visit family abroad and is required to apply for a new H-lB nonimmigrant visa stamp at a U.S. consulate in India in order to return to the U.S.  Will there be a delay in her return?  Can the process be expedited?
     
  • I am a nonimmigrant with only a passport from Egypt.  Will I be detained if I take a flight locally from Connecticut to Sante Fe, NM for a short trip with friends?  What will happen if Egypt is added to the list of designated countries?

Limit Non-Essential Travel

As mentioned above, the interpretation of this executive order as it is applied in different jurisdictions, court rulings limiting the enforceability of this order, and potential legislative action requires continued monitoring of applicable immigration law and regulations. At present, due to these uncertainties, we advise individuals from the seven designated countries as well as individuals who require the issuance of nonimmigrant visa stamps in their passports before re-entry into the United States to avoid non-essential international travel.

Potential for Additional Executive Orders          

As lawsuits continue to be filed which challenge President Trump's existing executive orders, additional executive orders have been drafted and submitted with recommendation for the President's signature. These additional orders could potentially have further impact on U.S. employers wishing to legally employ foreign nationals and on the issuance of nonimmigrant and immigrant (green cards) visas and other immigration and public benefits to foreign nationals, including skilled and unskilled foreign workers, foreign students, foreign visitors, and family-based immigrants. If issued, these additional executive orders could:

  • Direct the Secretary of Homeland Security to:
     
    • Review within 90 days all regulations that allow foreign workers to work in the United States, determine which of those violate immigration laws or are otherwise not in the national interest and should be rescinded or modified, subject to proposed notice and comment
       
    • Propose for notice and comment a regulation that would: conform the use of the Secretary of Homeland Security’s parole authority to immigration law requirements and clarify that parole may never be used to circumvent statutory immigration policy or admit to the U.S. classes of foreign nationals who do not qualify for admission under existing immigration categories; and immediately terminate all existing parole policies, guidance and programs that do not comport with the foregoing principles or the requirements of the Immigration and Nationality Act
       
    • Propose, in consultation with the Secretaries of State and Labor, as appropriate, for notice and comment, a regulation, or to make policy and operations changes, which would restore the integrity of employment-based nonimmigrant worker programs to better protect U.S. and foreign workers affected by those programs
       
    • Consider ways to make the process for allocation of H-lB visas more efficient and ensure that the beneficiaries of the program are the best and the brightest
       
    • Start performing, within 180 days of the order, site visits at work sites where L-l (intra-company transferees) nonimmigrants are employed, including third-party worksites where L-l nonimmigrants are placed
       
    • Develop a plan to expand the site-visit program within two years to encompass all employment-based visa programs
       
    • Provide recommendations for making U.S. immigration policy laws better serve the national interest and move towards a merit-based system
       
    • Propose for notice and comment a regulation that would reform practical training programs for foreign students to prevent disadvantaging of U.S. students, better protect U.S. and foreign workers in such programs, restore the integrity of student visa programs and improve the monitoring of foreign students
       
    • Propose for notice and comment a regulation that would comprehensively clarify activity that is and is not permissible by foreign nationals in the U.S. on business/tourist (B-l/B-2) visa
       
    • Within 90 days of the order, submit to the President options for ensuring efficient processing H-2A petitions for the nonimmigrant agricultural visa program, while maintaining programmatic integrity
       
    • Within 90 days of the order, submit to the President options for incentivizing and expanding participation by U.S. employers in E-Verify, including by conditioning, to the maximum extent permitted by law, certain immigration-related benefits on participation in E-Verify
       
  • Direct the Secretary of State and the Secretary of Homeland Security to:
     
    • Within 30 days of the order, conform to Congressional intent the manner in which the Department of State and DHS determine when an immigrant visa is immediately available
       
    • Propose for notice and comment a regulation that would reform the manner in which foreign nationals file for adjustment of status to lawful permanent residence in order to reduce the inefficiencies in the manner in which immigrant visas are allocated
       
    • Propose for notice and comment a regulation that would reform the E-2 treaty investor category for foreign entrepreneurs so that allowable activity by such entrepreneurs conforms to the requirements of immigration law
       
  • Direct the Secretary of Labor, in consultation with the Secretary of State, the Attorney General, and the Secretary of Homeland Security to:
     
    • Initiate an investigation of the extent of any injury to U.S. workers caused by the employment in the U.S. of foreign workers admitted under nonimmigrant visa programs or by the receipt of services from such foreign workers by American employers and provide the President with a report based on such investigation within 18 months of the order
       
    • Within nine months of the order, provide the President with an initial report on the actual or potential injury to U.S. workers caused, directly or indirectly, by work performed by nonimmigrant workers in the H-lB (professional workers in specialty occupations), L-l (intra-company transferees) and B-l (business visitors) visa categories
       
  • Instruct the Director of Office of Management and Budget to compile a report detailing how the U.S. Government will save $100 billion by ensuring that foreign nationals receive only the public benefits they are eligible to receive and that sponsors of foreign nationals fulfill their obligations to reimburse the government for the cost of welfare benefits provided to such foreign nationals
     
  • Require DHS and the Department of State to establish new standards and regulations for determining when foreign nationals will become subject to the “public charge” grounds of inadmissibility and deportability
     
  • Direct the Commissioner of Social Security to issue a report on the impact of low-skilled foreign workers on the Social Security Trust Fund’s long-term solvency
     
  • Direct the Secretary of State to publish a report on the long-term costs of the Refugee Admissions Program at the federal, state and local levels
     
  • Direct DHS and the Department of State to submit a report on the efforts they are making to combat the birth-tourism phenomenon.

[1] DHS has subsequently issued a Fact Sheet clarifying that the admission of U.S. immigrants
(Legal Permanent Residents) is deemed to be in the national interest, absent significant derogatory information indicating a serious threat to public safety and welfare.  Determinations of admissibility will be made on a case-by-case basis. 

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