On January 27, 2017, President Trump signed an executive order (among others) titled: "Protecting the Nation from Foreign Terrorist Entry into the United States" (the "Order"). The Order purports to "suspend entry" of both "immigrant and nonimmigrant" individuals from the seven countries currently subject to visa waiver restrictions: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.1 The Order excludes some diplomatic and government visas, but applies to individuals with common employment-based visas, such as H-1B and L-1 visas, and even lawful permanent residents (commonly referred to as "green cardholders"), as well as persons with dual nationalities (those who are nationals of the United States and another country). Note, this is based on our current reading of the Order but the situation is fluid.
The Order gives the Secretary of State and Secretary of Homeland Security discretion to issue visas or other immigration benefits "on a case-by-case basis" to individuals from these countries—but it does not appear any process is yet in place for granting these exceptions. Further, the Order also suspends the Visa Interview Waiver Program and requires all individuals seeking a nonimmigrant visa to participate in an in-person interview (subject to some statutory exceptions). This change will cause delays in the visa process.
The Order is supposed to be temporary—it is currently in place for 90 days—but the end of the travel ban depends on the United States receiving information from other countries to ensure individuals seeking visas or other benefits are not a security threat. As a result, it may be extended indefinitely. Thus, at this point it is not at all clear how long the Order will be in effect.
Going forward, it will be important for employers to work with counsel to handle this recent development. In the interim, foreign national employees from the seven banned countries should avoid international travel, especially those attempting to enter U.S. territory within the next 90 days, because their admission may be denied. We further advise that U.S. citizens with dual nationality carefully evaluate the situation. Therefore, careful planning must occur prior to any departure from or attempted return to U.S. territory. Likewise, in general, international travelers should expect visa processing delays worldwide.
Legal reaction to the President's Order has been swift. On January 28, 2017, a federal court in New York issued a temporary injunction against the federal government's implementation of portions of the Order. Specifically, under the nationwide stay, the government cannot remove from the country affected individuals just on the application of the Order. Removal applies to individuals being sent out of the United States after requesting entry. It does not address those boarding flights internationally. The stay asserts that the Order's implementation violates the Constitution's Due Process and Equal Protection Clauses. Another order issued by a Massachusetts federal court on January 29, 2017, will allow those affected to be allowed entry. The latter is a developing decision and more will follow.
Further, the White House has announced that the Order will not apply to people from the affected countries who hold green cards. This position is not clearly defined.
Littler Global Mobility and Immigration Team will be monitoring the situation as it develops and provide further guidance.
Footnotes
1 See 8 U.S.C. 1187(a)(12).
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