What you need to know in a nutshell
January 31, 2017
On Friday, January 27, President Trump issued an Executive Order (EO) that has been implemented immediately concerning entry into the United States of certain foreign nationals from the following countries:
Iraq, Syria, Iran, Sudan, Libya, Somalia & Yemen
Affected individuals are being placed in Secondary Processing when attempting to enter the United States. While in Secondary Processing, Customs and Border Protection (CPB) has been detaining individuals and initially refusing to allow them entry despite the fact that they hold an immigrant or non-immigrant visa. This has since been relaxed to allow those with Legal Permanent Residence Status (they have a “Green Card”) to enter the United States in most circumstances.
Those affected are only individuals from the countries listed above. We understand that between 100 and 300 travelers were immediately affected.
On Saturday, January 28, the U.S. District Court for the Eastern District of New York issued a Temporary Restraining Order (TRO) allowing for the entry of individuals with approved refugee applications, and those holding valid immigrant (“Green Cards”) and non-immigrant visas.
On Sunday, January 29, a U.S. District Court in the District of Massachusetts issued a TRO that CBP shall not detain or remove individuals with approved refugee applications, holders of valid immigrant and non-immigrant visas, and others who “absent the Executive Order, would be legally authorized to enter the United States.”
Two other courts also issued rulings. In a case filed in Virginia, the federal court ordered U.S. officials to provide lawyers access to "all legal permanent residents being detained at Dulles International Airport" and barred officials from deporting covered individuals for the next seven days. In the case from Washington State, a federal judge barred the U.S. government from deporting two unnamed individuals.
There have been sporadic reports that some travelers with Green Cards are being pressured to voluntarily surrender the cards.
The U.S. State Department has suspended all visa processing for individuals from the seven countries referenced above for 90 days. The Refugee programs for those countries have been suspended for 120 days.
The Department of Homeland Security issued a statement Sunday that reads in part: “The Department of Homeland Security will faithfully execute the immigration laws, and we will treat all of those we encounter humanely and with professionalism. No foreign national in a foreign land, without ties to the United States, has any unfettered right to demand entry into the United States or to demand immigration benefits in the United States.”
WILL THIS AFFECT YOUR EMPLOYEES?
If any of your employees are from the seven affected countries and we have represented your company in connection with a visa, we have contacted you individually.
If you have employees from those countries for whom we have not represented your company, they may come to you for advice. Generally, we are advising that people from the seven countries not leave the United States unless they have an urgent need to do so (such as visiting a terminally ill family member, or to stop the Unlawful Presence clock), even if they have a valid visa such as an L or an H, if they have Advance Parole, or if they have a Green Card. If the worker urgently needs to travel, he or she needs to understand they may have a difficult or impossible time returning for the time being. Please feel free to let us know of the circumstances and we will be happy to provide specific advice for your company.
If any of your employees not from the seven countries express concern, please let them know that for now it’s business as usual for those workers.
You may have employees worried about traveling on their Green Cards. As a general matter, Legal Permanent Residents (LPRs) should never surrender their Green Cards if asked to do so by an immigration officer. People with Green Cards lose their status as LPRs only if they voluntarily relinquish the card or if a judge determines they are no longer LPRs.
Despite what an immigration officer says, there are no potential negative ramifications for refusing to sign any document relinquishing lawful permanent residence status, even though at the time of admission to the United States the burden of proof is on the traveler. If the officer confiscates a Green Card when a traveler refuses to sign an abandonment document, the officer must (a) provide alternative evidence of LPR status to the traveler, and (b) issue a Notice to Appear in court where the burden of proof shifts to the government to prove its case. Please contact us and we can provide specific advice if you encounter this issue.
OTHER PROVISIONS IN THE JAN 27 EXECUTIVE ORDER THAT MAY AFFECT YOU
1. Suspension of Visa Interview Waiver Program. The U.S. Embassies and Consulates in several countries have had in place a program that allows for obtaining a re-issuance of visas without an interview. This program has been suspended. Nearly all travelers seeking visa re-issuance will have to appear for an interview until further notice. This should not require very young children (under the age of 14, in most countries) to attend visa interviews with their parents, but individual consulates may interpret this differently until guidance is issued.
2. Visa Validity Reciprocity. The Secretary of State has been ordered to review non-immigrant visa reciprocity agreements to ensure that they are truly reciprocal with respect to validity periods and fees. Particularly, we expect that impacts may be felt by employees holding non-immigrant NAFTA professional, or TN visas. However, it is too early to predict precisely what these impacts may be. Other non-immigrant visa types may be affected, and it may be very dependent on the employee’s country of origin.
We will continue to monitor this EO and future EOs concerning the shifts in immigration policies taking place in order to advise on the practical impacts your company may experience. If you need specific guidance, please contact us and we will be happy to provide counsel.
David J. Garrett’s law practice helps businesses and people get where they need to go. He focuses on immigration-related matters and civil litigation, representing both individuals and companies. David is a member of the Firm's employment and labor and construction practice groups, and leads the firm's immigration practice.