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Employment Law In Focus – January 2017

DON’T GO AWAY! What President Trump’s Immigration Executive Order means for employers and the foreign nationals they employ.

This month’s Employment Law in Focus addresses President Trump’s recent Executive Order entitled “Protecting the Nation From Foreign Terrorist Entry Into the United States.”  Signed last Friday, January 27, 2017, the Order has caused days of chaos at the nation’s airports, numerous protests in this country and abroad, reprisals by at least one foreign state, the termination of the acting U.S. Attorney General, and at least four federal courts to enjoin portions of its mandates.

Although a partial reversal and some clarification was issued on Sunday evening, much about the Order is still in a state of flux.  So this article is intended to provide at least some employer guidance as to what the Executive Order actually does and doesn’t mean for them and their foreign nationals – as of January 31, that is.  It’s written by two of Constangy’s top immigration attorneys, Will Krasnow in Boston [(617) 849-7878; wkrasnow@constangy.com] and Jeanette Phelan in Jacksonville, Florida [(904) 357-2663; jphelan@constangy.com], with a major caveat in mind:  stay tuned.

In summary, the best guidance at this point for employers of non-immigrant visa holders from the countries specifically identified in the Order is to caution those employees to stay in the United States if they are already here. Indeed, even if the individual is a permanent lawful resident (holder of a green card) or is from a Muslim-majority country that is not on the list, non-essential travel outside the United States should be avoided, as will be discussed in more detail below.

Key provisions of the Executive Order

Rationale. The stated rationale for the Order is to prevent terrorists and terrorist sympathizers from coming to the United States. Section 2 of the Order says, “The United States must be vigilant during the visa-issuance process to ensure that those approved for admission do not intend to harm Americans and that they have no ties to terrorism.” The Order also says that immigrants coming to the United States should share “American” values – that is, they should not hold “violent ideologies,” “engage in acts of bigotry or hatred” based on religion or sex, or advocate “oppression” based on “race, gender, or sexual orientation.”

Suspension of admission to United States. Section 3 of the Order directs the Secretary of Homeland Security to determine what information is needed from countries to confirm the identity of the person seeking a “visa, admission to the United States,” adjudication, or other “benefit” under the Immigration and Naturalization Act, and to determine that the person “is not a security or public-safety threat.” The DHS report is due 30 days from January 27, the date of the Order

In the meantime, entry of individuals (both immigrant and non-immigrant) from seven specified countries is suspended for a period of 90 days from the date of the Order.  The affected countries are Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. A “Practice Alert” from the American Immigration Lawyers Association notes that the Order does not define “from.” “Thus, in an abundance of caution,” the AILA publication says, “it may be best to interpret the term broadly to include passport holders, citizens, nationals, dual nationals, etc.”

The Order did not make an exception for individuals from these countries who were already lawful permanent residents of the United States. However, Section 3(g) of the Order allows the State and Homeland Security departments to make exceptions to the suspension “on a case-by-case basis” “in the national interest.”

On Sunday evening, after several courts had enjoined various parts of the Order, John Kelly, Secretary of Homeland Security, apparently taking advantage of the Section 3(g) exception, issued a statement saying that admission of “lawful permanent residents” was determined to be “in the national interest.” In the statement, Secretary Kelly also said that “absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status will be a dispositive factor in our case-by-case determinations.”

This indicates that green card holders – even if they are from one of the seven “suspended” countries – should now be admitted into the United States notwithstanding the 90-day suspension.

Section 3 of the Order provides that, once the Secretary of Homeland Security determines what information is needed to “vet” foreign nationals, the Secretary of State will notify the affected countries and give them 60 days to begin complying. After that 60-day period, State and Homeland Security will prepare a revised list of “suspended” countries. The Order authorizes State and Homeland Security to revise the list as needed, and to add other countries to the list.

Refugee suspension. Section 5 of the Order also suspends the U.S. Refugee Admissions Program for 120 days. During this period, the State and Homeland Security departments are directed to review the relevant procedures and determine what more needs to be done “to ensure that those approved for refugee admission do not pose a threat to the security and welfare of the United States, and shall implement such procedures.” Section 5(c) of the Order specifically suspends the admission of Syrian nationals.

Other provisions. Some other noteworthy provisions of the Order provide for accelerating “the completion and implementation of a biometric entry-exit tracking system for all travelers to the United States”; suspension of the Visa Interview Waiver Program, meaning that “individuals seeking a nonimmigrant visa undergo an in-person interview,” which could result in delays; and a review of reciprocity agreements.

Recommendations for employers of foreign nationals

The following is obviously subject to change, depending on what happens in the future. But as of now, here are some recommendations for employers trying to assist foreign nationals:

*Non-immigrant visa holders from the seven “suspended” countries should not travel outside the United States because it is possible that they will not be admitted back. This would include, for example, holders of F-1, L-1, and H-1B visas.

*Non-immigrant visa holders who are not from the seven “suspended” countries but who are from Muslim-majority countries should avoid non-essential travel outside the United States. Because the admission ban can be expanded at any time and without prior notice, it is possible that another Muslim-majority country will be added to the list while the visa holder is out of the country, preventing him or her from being admitted back – as happened with many travelers this weekend.

*Permanent legal residents, likewise, should avoid non-essential travel outside the United States. Green-card holders may be protected by Secretary Kelly’s statement, but there are no guarantees because the statement is not entirely consistent with the terms of the Order First, the Order appears to authorize admissions “in the national interest” only if the determinations are made on a “case-by-case basis,” not on a “blanket” basis. Second, Secretary Kelly did not say that green card holders were “exempt” from the Order, and the Order by its terms does not exempt them.

*Delays are likely. As already noted, the requirement that visa interviews be conducted in person are likely to result in delays.

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