Trump’s Immigration Ban and What Lies Ahead?

Trump Administration Issues Executive Order Temporarily Banning Admissions of Nationals from Certain Countries and Delaying and Limiting Refugee Admissions

On Friday, January 27, 2017, President Trump signed an Executive Order entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.” The provisions of the Order are broad in scope and appear to be designed to target people of Muslim faith. They will, however, likely have broader application. The Executive Order took effect immediately and has since created much chaos and consternation.

Below is a summary of the provisions within the Executive Order:

Ban on Entry of Nationals of Muslim-Majority Countries

The Executive Order bans immigrant and nonimmigrant entries into the U.S., for at least 90 days, for nationals of Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen. The ban on “immigrant visas” was initially applied broadly to include to foreign nationals from these countries who hold U.S. permanent resident or “Green Card” status, but the Department of Homeland Security (DHS) appears to be retreating somewhat from this stance.

Over the weekend there were numerous reports of delays for admission at U.S. international airports as well as of detentions and removals. Several Federal Courts have issued temporary stays enjoining the Department of Homeland Security (DHS) from enforcing certain aspects of the Executive Order. At the same time, DHS has issued a press release stating that it believes that the Executive Order is lawful and will enforce it, within the confines set out by the judiciary.

There is a considerable amount of confusion as to the status of the Executive Order. For example, in a Statement By Secretary John Kelly On The Entry Of Lawful Permanent Residents Into The United States, the Head of the Department of Homeland Security appears to walk back the ban with respect to Green Card holders from the designated countries, when he stated: “I hereby deem the entry of lawful permanent residents to be in the national interest.” Yet, in the very next sentence Secretary Kelly calls it a “dispositive factor in our  case-by-case determinations.” What seems to be clear from the latter statement is that while the Department of Homeland Security won’t prohibit Permanent Residents from the affected countries from seeking admission, it will nonetheless subject individuals in this class to secondary inspection, more extensive questioning and delays, and potentially even detention or removal.

While this ban temporarily (i.e. for 90 days) affects nationals of Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen, other countries may be added and adjudications of other immigration benefits (not just admission into the United States) could be impacted. The Executive Order also calls for the exclusion of people who “would place violent  ideologies over American law” or “who 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).” This language is vague and appears highly susceptible to discriminatory abuse generally and specifically against people of Muslim faith.

Requires In-Person Interviews for Most Nonimmigrant Visa Applicants

The Executive Order suspends the Visa Interview Waiver Program (VIWP), requiring all nonimmigrant visa applicants to attend an interview unless an interview is not required by statute. The VIWP allowed consular officers to waive the interview requirement for applicants seeking to renew nonimmigrant visas within 12 months of  expiration of the initial visa in the same classification. This program was largely used by employment-based nonimmigrant applicants, such as H, O, P, and L, who are simply seeking a renewal visa. Suspending the VIWP will place enormous burdens on U.S. consulates and embassies (particularly high-volume posts) by increasing already extended interview wait times and processing times, wasting limited resources, and decreasing the quality of consular interviews. The VIWP has been used to waive the interview requirement only for travelers who have already been vetted and determined to be a low security risk and who have a demonstrated track record of stable employment and stable travel.

Given these changes, any individual who may be in the process of applying or who is contemplating filing for a nonimmigrant visa should anticipate delays in the processing of their visas and the possibility of being stuck abroad for “administrative processing” due to background checks.

Screening of all Immigration Benefits

The Executive Order directs federal agencies to develop screening standards and procedures for all immigration benefits to identify fraud and detect whether a person intends to do harm. Agencies are directed to create a process to evaluate the person’s “likelihood of becoming a positively contributing member of society” and “ability to make contributions to the national interest.” These standards are not  required by law (except in very limited circumstances), are extremely subjective, and may create significant and often insurmountable barriers for many individuals.

Biometric-Entry Exit

The Executive Order directs agencies to expedite the completion and implementation of a biometric entry-exit system and includes reporting requirements. Since 1996, Congress has mandated that an automated entry-exit system be utilized and implemented at all air, land, and sea ports of entry in an attempt to track those who overstay their visas. While DHS implemented biometric entry in 2006, a biometric exit system has been held up by numerous obstacles and logistical issues. The completion of an integrated biometrics entry-exit system will require significant funding. The FY 2016 Consolidated Appropriations Act authorizes up to $1 billion for a biometric exit program, to be collected through fee surcharges over a period of up to 10 years. DHS has noted that a comprehensive entry-exit system at all ports of entry will require additional resources.

Some of these provisions will likely be fleshed out in subsequent Executive Orders and in proposed regulations. These provisions are  likely, at a minimum to create significant delays in visa applications by skilled workers applying in the common employment-based categories – H-1B, L-1, TN, E1/2/3 and O-1. There are also suggestions in some of these provisions of additional restrictions and limitations that could affect the adjudication of immigration benefits in the United States and not just travel.

Suspension of the U.S. Refugee Admissions Program (USRAP)

The Executive Order suspends the USRAP for 120 days. Exceptions can be made on a case-by-case basis if (i) it is in the national interest, (ii) the person would not pose a risk, and the person is a religious minority facing religious persecution, (iii) the admission of the person is required to conform U.S. conduct to an international agreement, or (iv) when a person is already in transit and denying admission would cause hardship. In addition, for the current fiscal year which expires September 30, 2017, the Order reduces the number of refugees to be admitted to the U.S. by more than half from an initial goal set by President Obama of 110,000 to 50,000, dropping U.S refugee admissions to the lowest level in a decade. Having already admitted 29,895 refugees as of January 20, 2017, the United States would only admit 20,000 more refugees for the remainder of the year. The Order also directs 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.

Ban on Syrian Refugees

The Executive Order halts the processing and admission of Syrian refugees indefinitely, until the President determines that sufficient changes have been made to ensure that the admission of Syrian refugees is in the national interest.

What lies ahead and to possibly prepare for

There has already been a great deal of backlash against the Trump Administration for the way it has carried out this Executive Order and it is already facing legal challenge in several federal courts across the country. Nonetheless, the reality is that it is in place and the DHS is following executive directive. It could easily be several months before we get a better picture of how our immigration system will be administered in light of this Executive Order.

Anyone holding a nonimmigrant visa or a green card who is a Muslim and is a national of one of the affected countries should not travel outside the U.S. That much is quite clear. Those of Muslim faith or from a predominantly Muslim country (yes – even one that is not on the banned list) may want to postpone travel outside of the United States – except in cases of emergency – until we have a better sense of the application of the Executive Order by U.S. Customs & Border Protection (CBP).

Any person who has to apply for a visa (nonimmigrant or immigrant) should anticipate delays in visa issuance and the possibility of being  unable to return to the U.S. for up to several months due to “administrative processing.”

Any person who holds a valid unexpired visa (whether it was issued under their current employer’s name or a prior employer’s name) should be well-prepared to document their employment with their new employer by carrying pay statements, the contact information of their company’s HR, and a letter confirming their employment and expected return to employment in the position listed in their visa petition.

Any person traveling to the U.S. for a temporary period on business should also carry back up documentation to support the purpose of their visit. This includes proof of confirmed lodging, business contacts, proof of employment abroad, and any other documentation that would tend to confirm one’s actual residence. This is not to say that every traveler can or should expect the third degree questioning from CBP, but given the current climate it certainly cannot hurt to be prepared.

Parker Gallini LLP will continue to up-date you as more guidance is issued and as we have a better sense of the impact these rules are having on legal immigration.

Please contact Parker Gallini LLP (www.info@parkergallini.com; 781-810-8990) if you have any questions about the latest Executive Order of President Trump.

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Business Immigration Law Firm
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