On the third full work day of his presidency, President Donald J. Trump is expected to issue several Executive Orders related to immigration, fulfilling his campaign promises to tighten the border and keep the country safe from terrorists. The president took to Twitter yesterday to announce a “big day planned on NATIONAL SECURITY” for Wednesday, January 25, including the building of “a wall” along the U.S. border with Mexico, an increase "enforcement and removal operations/agents" including adding 5,000 personnel to Immigration and Customs Enforcement ("ICE")agency. The Executive actions are also expected to include a temporary(120 -day) pause for most refugee admissions and what has been described as a temporary "ban on entry to the U.S." for citizens of certain countries in the Middle East and Africa: Syria, Iraq, Iran, Libya, Somalia, Sudan and Yemen.
For many individuals and employers, the entry ban will be of great concern. Below is a summary of the information we have so far:
How long will the U.S. ban entry to citizens from Syria, Iraq, Iran, Libya, Somalia, Sudan and Yemen?
At this time, it is not clear exactly how long this ban will last, whether it will impact both nonimmigrant (temporary) and immigrant visas, and the implications for those individuals who are already in the United States with temporary work visa status.
How will the U.S. entry ban be implemented?
Presumably, the Executive Order will prevent the U.S. State Department from issuing visas to citizens of Muslim majority countries who wish to apply for visas at a U.S. consulate.
Can citizens of banned countries enter the U.S. if they received a U.S. visa before the ban went into effect?
For citizens of countries subject to the ban who have already received a U.S. visa, but who have not yet traveled to the U.S, it is presumed that they would no longer be permitted to seek admission with that previously issued visa. This would involve U.S. Customs and Border Protection (CBP) inspectors turning back citizens of the named countries and denying them entry to the United States, even if they have facially valid visas in their passports.
How will the U.S. entry ban impact citizens of banned countries who are already in the U.S. in valid status?
Citizens of these countries who are already in the United States in valid status (e.g., H-1B, L-1A, O-1) and who wish to travel abroad but who need new visa stamps to return to the United States, presumably will be unable to do so. How the directive will impact the status of those already in the United States or who seek to “extend” or “change” their nonimmigrant status is unclear.
When will the Executive Order on Immigration take effect?
Unlike a change in agency regulation, the Executive Order can take place immediately and without the need for congressional action or approval.
Can the Executive Order on Immigration be overturned?
While the president has the authority to issue such orders if the administration deems the action to be in the public interest, legal challenges may be anticipated. Many believe that wide sweeping bans such as those on refugee admissions and visa issuance effectively discriminate against individuals on a religious basis, as all the countries are predominantly, if not nearly entirely Muslim.
This announcement comes on the same day as the swearing in of a new Secretary of Homeland Security, retired Marine General John Kelly. And, with regard to the construction of the promised “wall” at the Mexican border, it follows the president’s announcement yesterday of his intention to renegotiate the North American Free Trade Agreement (NAFTA), signed over 20 years ago by Canada, Mexico and the United States, and which, among other provisions, allows for a special immigration status – “TN” – for professional workers from our Northern and Southern neighbors. It is far too soon to tell the potential impact of a NAFTA renegotiation on these unique immigration statuses for Mexico and Canada, although certainly, any changes in this area would require time to be implemented.
We will be tracking these developments carefully in the coming days and weeks, in particular with regard to their immediate impact on U.S. employers, individuals and their families.