On June 20, 2018, President Donald Trump signed an Executive Order (EO) titled “Affording Congress an Opportunity to Address Family Separation.” The stated purpose of this EO is to confirm the policy of the Administration with regard to immigration and entry of persons at the border.  The text of the EO restates the policy stance of this Administration to enforce the immigration laws with regard to entry at the border.  The text in the EO restates that a crime of improper entry is subject to a fine or imprisonment.  The Administration will continue to initiate proceedings to enforce this provision, among others.  In addition, under the “Policy” section of the EO, the Administration states that its policy is to “maintain family unity, including detaining alien families together where appropriate and consistent with law and available resources.”  The text of the EO encourages Congress to act upon legislation that will maintain family unity so that the Administration will not need to separate families to enforce the law.

The EO includes a section titled “Temporary Detention Policy for Families Entering this Country Illegally.”  This section includes provisions for illegal entries that will attempt to detain an alien family together, unless there is concern that the welfare of the child is at risk.  The Secretary of Defense is tasked with taking all measures to provide facilities, either those already in existence, or to construct them, to be able to house alien families.  The heads of other executive departments and agencies are also asked to make available any appropriate facilities. To keep alien families together, the EO contains a provision requiring the Attorney General to file a request with the U.S. District Court for the Central District of California to modify the Settlement Agreement in Flores v. Sessions, so that alien families can be detained together throughout the pendency of criminal proceedings.

As events surrounding the signing of this Executive Order emerge, we will continue to update our blog.

President Trump signed a new Executive Order (EO) on Tuesday, the same day as the last travel ban’s provision against refugee admissions was due to expire.  The EO allows refugees to travel into the U.S. and the Department of Homeland Security to process refugee applications. The Trump Administration had previously blocked refugee travel through an EO issued on March 6, 2017, (“Protecting the Nation from Foreign Terrorist Entry into the United States”) which directed a review to strengthen the vetting process for the U.S. Refugee Admissions Program (USRAP). A working group was established for this purpose which resulted in the implementation of improvements and enhancements to the process for screening and vetting refugees. Although the USRAP is allowed to resume, the Departments of State, Homeland Security, and the Office of Director of National Intelligence determined that refugee admissions of 11 unnamed nationalities previously identified as potentially posing a higher risk to the United States will be processed with additional review on a case by case basis within a new 90 day review period and additional security measures will be implemented for following-to-join refugees of all nationalities that have already been resettled in the United States.  Admissions of following-to-join refugees will resume once those enhancements have been implemented.

For more information on the Trump Administration’s travel bans please click here.

On June 21, President Trump issued an Executive Order Amending Executive Order 13597. This Executive Order rescinds a  provision, subsection (b)(ii) of Section 2,  of an Obama Administration era Executive Order Establishing Visa and Foreign Visitor Processing Goals and the Task Force On Travel and Competitiveness that read, “ensure that 80 percent of nonimmigrant visa applicants are interviewed within three weeks of receipt of application.”

Many observers view this rescission as necessary due to conflicting timelines presented by the Executive Orders with ongoing more aggressive vetting of applicants.

On April 18, 2017, President Donald Trump signed an Executive Order (EO) titled “Buy American and Hire American.” The stated purpose of this EO is to protect the American economy by having the U.S. government and agencies focus on purchasing goods made in America, and to also protect American workers. The first part of the EO includes text that focuses on conducting studies and putting forth plans for federal agencies to immediately maximize the use and procurement of materials and products made in the United States—or “Buy American.”

The second part of the EO includes text that focuses on “Hire American,” that is, reviewing current U.S. immigration laws, specifically as they relate to nonimmigrant visa categories. A summary of the second part of the EO is below:

Ensuring the Integrity of the Immigration System in Order to “Hire American”:

  • The Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security are tasked with proposing new rules and issuing new guidance with the intent of protecting U.S. workers and eliminating fraud or abuse.
  • In addition, the text of the EO directs that reforms should be focused on ensuring that H-1B status is only granted to those who are the “most-skilled” or the “highest-paid.”

This EO comes only a few weeks after various U.S. federal agencies tasked with administering immigration law issued guidance and decisions with the intent of preventing fraud and abuse in the immigration system, specifically the H-1B program. The United States Citizenship and Immigration Service, the Department of Justice, and the Department of Labor all released statements and/or policy with regard to the H-1B program.  To see a summary regarding these statements and/or policies, please visit our previous post.

As this EO is general in nature and does not dictate any specific timelines for the “Hire American” portion, Greenberg Traurig will continue to monitor the conditions and changes. To receive updates, please subscribe to our blog.

On March 15, 2017, the day before President Trump’s new Executive Order (EO) entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” went into effect, a federal judge in Hawai’i issued a nationwide temporary restraining order (TRO) blocking the implementation of the EO. This EO, issued on March 6, 2017, revoked and replaced the original EO issued on Jan. 25, 2017. The first EO was also temporarily halted by a federal court in Seattle, after which the Ninth Circuit stayed the ruling.

In the current case at hand, State of Hawai’i and Ismail Elshikh vs. Donald J. Trump, et al., Judge Derrick K. Watson of the U.S. District Court for the District of Hawai’i granted the Motion for TRO filed earlier in the week. The TRO was granted on grounds that the EO violated the Establishment Clause of the U.S. Constitution.

In his ruling, Judge Watson cited portions of the new EO that suspend U.S. entry of nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen, with certain exceptions carved out that were not explicit in the first EO, such as exempting lawful permanent residents and those who are already physically in the United States. The new EO also includes text that suspends the U.S. Refugee Admissions Program for 120 days.

The plaintiffs in the case, the State of Hawai’i and Dr. Elshikh, both cited to injuries that would occur to both the state and the family, respectively, if the EO was implemented, since it bans travel for nationals from one of the six designated countries who are abroad. The plaintiffs also stressed that the text of the EO effectively targets the Muslim religion, quoting statements made during interviews and campaigns by the administration.  As such, the plaintiffs sought to enjoin Sections 2 and 6 of the new EO.

Judge Watson found that the State of Hawai’i had standing, based on the fact that its university systems would suffer from both a cultural and financial burden, as would its tourism industry. He also found that Dr. Elshikh had standing due to the fact that he was able to show injury to his family if the EO was implemented.

As to the legal basis for granting the TRO, Judge Watson found that due to the background, history, and intent of the newly issued EO, the Plaintiffs were likely to succeed on the merits of an Establishment Clause claim.

In addition, on March 16, 2017, a federal judge in Maryland also temporarily blocked the order.

Greenberg Traurig will continue to monitor events surrounding this TRO and provide updates relating to relevant agencies in connection with the newly issued EO.

It has been reported that President Trump’s administration is likely preparing to effectuate additional changes affecting immigration issues.  Specifically, in addition to the Executive Order executed on Jan. 27, 2017, the administration is reportedly working on additional Executive Orders, a released draft of which addresses the availability and use of advance parole, among other issues which pertain to employment-based immigration.  Advance parole enables return to the United States after international travel for those who are in the process of applying for permanent residence while living in the United States.  Parole is also available to other classes of foreign nationals, including asylees, as well as those granted this ability via the Deferred Action for Childhood Arrivals program.  Based on the released drafts of the Order, it is possible that, when signed and implemented, it could severely curtail the ability of foreign nationals to be able to re-enter the United States after international travel using Advance Parole.  Therefore, until further information is available, employers may consider advising their foreign national employees fitting the above description to refrain from international travel at this time.  Likewise, foreign nationals who have applied for or currently have valid advance parole should consider remaining in the United States until further information regarding the Order is available.

Importantly, those individuals who are maintaining temporary visa status such as H-1B, L-1A, or L-1B are not subject to this caution.  In fact, because the H-1B and L-1 regulations specifically allow for permanent intent while in the United States, foreign nationals are able to continue to maintain and extend these visa statuses even while their green card applications are pending in the United States.  Therefore, they have the ability to utilize their valid H-1B and L-1 visas for international travel, rather than the advance parole issued as part of the green card application process.  Based on this, as well as on the draft language of the administration’s Executive Order, foreign nationals and employers may wish to consider ensuring that, where possible, H-1B or L-1 visa status is extended throughout the green card application process and until green card approval.  Notably, those foreign nationals in the United States who were in F-1, J-1, O-1, H-1B1, E-1, E-2, E-3, TN, or a number of other visa statuses at the time of their green card applications will not be able to maintain their visa status throughout the green card application travel if they intend on traveling internationally, because of the temporary intent requirements of these visas.

Please contact your GT attorney to discuss temporary visa and green card application processes.  GT will continue to follow and report any developments with regards to the related Executive Order.

 

On Feb. 9, 2017, the U.S. Court of Appeals for the Ninth Circuit issued a ruling keeping in force the temporary restraining order (TRO) that was issued last Friday by the U.S. District Court for the Western District of Washington. The TRO was issued in connection with the lawsuit filed by State of Washington and State of Minnesota challenging the Executive Order (EO) 13769, “Protecting the Nation From Foreign Terrorist Entry Into the United States.” The TRO stopped the enforcement of some of the key provisions of the EO. Two days after hearing oral arguments, the Court of Appeals issued an Order declining to stay the TRO while the Government proceeds with its appeal of the lower court’s decision. In allowing the TRO to continue in effect, the Court noted that the States had standing to bring suit and that the Government was unable to establish that the TRO was “overbroad” or that persons identified in the TRO were not subject to Constitutional protections. In addition, the Court’s order maintained the national application of the TRO. While declining to address in detail the issue of religious discrimination, the Court noted that, in the interest of the emergent nature of the current legal proceedings, review and full consideration of these claims should be made at a later time. Finally, the Court found that keeping the TRO was in the general public interest.

As a result of today’s decision, the TRO remains in effect, preventing the application of the key provisions of the EO. It is likely that the Government will quickly announce their proposed next steps in this litigation. GT will continue to monitor and report on these important events.

On February 3, 2017,  U.S. District Judge James L. Robart of the U.S. District Court for the Western District of Washington at Seattle issued a Temporary Restraining Order (“TRO”) halting the enforcement of the Executive Order (“EO”) “Protecting the Nation from Foreign Terrorist Entry into the United States,” signed by President Trump on January 27th, 2017.  The TRO was issued in connection with State of Washington, et al v. Donald Trump, et al (C17-0141JLR), filed with the Court earlier this week.

The TRO is effective nationwide and prohibits the enforcement of the ban on entry of nationals of the impacted countries with nonimmigrant (temporary) and immigrant (permanent) visas, refugees, and the permanent ban on Syrian refugees.

In granting the TRO, the Court found the State of Washington, and the other States in the U.S. have shown that the litigation against the EO is likely to be successful, that the States will suffer irreparable harm with respect to familial relationships, employment, travel, business, and education due to the enforcement of the EO.

It has been reported that U.S. Customs and Border Protections (CBP) has informed the airlines that they may board foreign nationals of the impacted countries who have visas and that they will be allowed entry to the U.S. in compliance with the TRO.  It has also been reported that the State Department has reversed its prior provisional revocation of valid visas of the impacted foreign nationals, allowing them to utilize these visas for entry to the U.S.

On February 4, 2017, the White House released a statement that they intend to seek a Stay of the TRO immediately and consider the provisions of the EO to be lawful and within the President’s authority.

Update:  On February 4, 2017, subsequent to the filing with the court of a notice of its intent to appeal the TRO, the U.S. Department of Justice (DOJ) filed an Emergency Motion to stay (or stop) the TRO with the U.S. Court of Appeals for the Ninth Circuit, pending a full hearing in connection with the lower court’s decision to grant the TRO.  The Ninth Circuit denied DOJ’s Emergency Motion and ordered briefing from both parties in connection with the lower court’s decision.  DOJ’s brief is set to be due at 11:59 pm on February 5, 2017, with the State of Minnesota et al having to file their reply brief by 3 pm on February 6, 2017.

GT will continue to monitor this constantly changing situation and provide updates.

We have prepared a serious of Questions and Answers below addressing some of the most commonly asked questions with regard to this Executive Order (EO). GT will continue to monitor developments and provide up to date information.

Q1:         What do the provisions of the EO address?

A1:         The provisions of the EO address several issues:

1. Ban of entry to the United States for nationals of seven countries: Iran, Iraq, Sudan, Somalia, Yemen, Libya, and Syria, whether with nonimmigrant (temporary) or immigrant (permanent) visas for 90 days. At the conclusion of 90 days, the ban is not automatically lifted; instead, there are a number of affirmative steps listed in the EO to once again enable such entry.

2. Suspension of the Visa Interview Waiver program for all visa applicants. Instead, the U.S. Department of State will mandate visa interviews for all applicants for nonimmigrant visas, with the following exceptions:

a. Diplomatic and official visa applicants (A-1, A-3, G-1, G-2, G-3, G-4, NATO-1 through-6, C-2, and C-3);

b. Visa applicants who are under 14 or over 79 years of age;

c. Visa applicants who previously held a visa in the same category, which expired less than 12 months before the present visa application.

3. Ban of entry to refugees to the United States from Syria indefinitely.

4. Reduction of the total number of refugees to enter the United States in Fiscal Year 2017 to 50,000.

5. Establishment of requirements for “extreme vetting” for a finding of eligibility of refugee status.

To read the full GT Alert, click here.

As we previously reported, President Donald Trump signed a third Executive Order (EO) related to immigration on Jan. 27, 2017.  The stated purpose of this EO is to protect the United States from terrorism stemming from foreign nationals of other countries by limiting entry and visas to certain individuals, titled “Protecting the Nation from Foreign Terrorist Entry into the United States.” In practice, it will block admission to the United States for at least 90 days for nationals of seven countries (Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen) who hold nonimmigrant visas, such as H-1Bs and L-1s, and green card holders.

Suspension of Visa Issuance

The text of this EO calls for the suspension of issuance of visas to nationals of certain countries where concerns of terrorism arise. The Secretary of Homeland Security, consulting with the Secretary of State and the Director of National Intelligence, is tasked with the duty to submit a report to President Trump, in 30 days, regarding the review of information necessary for visa adjudications to verify individual identity and a list of countries that are of concern.

To alleviate the burden of investigation by the agencies, and to ensure that review is thoroughly completed with the resources needed, President Trump proclaims in the Executive Order that any immigrant and nonimmigrant entry into the United States shall be suspended for 90 days by persons who are nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. This 90 day entry ban excludes those traveling to the United States on diplomatic visas, NATO visas, C-2 visas for travel to the United Nations, and G-1, G-2, and G-4 visas, but includes those entering the United States on L-1, H-1B, and most work visas.

The definition of “national” typically refers to a person born in that country, who may or may not be a citizen of the country. In some cases, it can also refer to the children of such individuals born in other countries to parents who in turn were born in one of the listed countries.  Because of the broad way in which the Order appears to reference “nationals,” in the process of enforcement of the Order, it has been interpreted to include all those fitting the definitions outlined above.

Once the report is received by the Secretary of State regarding the information needed to continue adjudication of immigrant and nonimmigrant visas, information shall be requested of all foreign governments that have not supplied such information within 60 days of notification. After the 60 day period has ended, the Secretary of Homeland Security, consulting the Secretary of State, is required to submit to President Trump a list of countries recommended to be put on a list that would prohibit the entry of foreign nationals from the countries that do not supply the required information. The list of countries would exclude its nationals who travel for the same categories as mentioned above. The Executive Order includes language that gives the Secretary of Homeland Security and the Secretary of State the discretion to add additional countries to this list for President Trump’s review. In addition, visas may also be issued on a case-by-case basis to nationals even if their countries are on the list. Four reports, each submitted within 30 days of the Order to President Trump, are required to document the progress.

Implementing New Standards for Screening Those Seeking Immigrant and Nonimmigrant Visas

The Secretaries of State and Homeland Security, the Director of National Intelligence, and the Director of the FBI are tasked with implanting a program that will develop and change the uniform screening standard and procedure at the U.S. consulate, including the following:

  • Establishing a database of identity documents to ensure they are not used by multiple applicants;
  • Application forms with amended questions aimed at identifying fraudulent answers and malicious intent;
  • Questions to evaluate whether the applicant will be a positively contributing member of society;
  • Process to assess whether the applicant has the intent to commit criminal or terrorist acts in the United States.

Suspensions for the Fiscal Year 2017

President Trump, through this Executive Order, is temporarily suspending the following until further review and notice:

  • Suspension of the U.S. Refugee Admission Program (USRAP) for 120 days. During this period, a review will be conducted to determine and change the adjudications procedure. Refugee applicants already in the process may be admitted upon the initiation and completion of the revised procedures. Refugee claims made by individuals on the basis of religious-based persecution (if the religion is a minority religion in the country of nationality) will be made a priority once USRAP is continued;
  • Suspension of Syrian refugees until further determination;
  • Suspension of refugee entry until admissions are permissible, and at that time, such numbers shall not exceed 50,000 per fiscal year; and
  • Suspension of the visa interview waiver program for anyone seeking a nonimmigrant visa.

The Executive Order includes a provision that would allow the admission of refugees on a case-by-case basis, if it is in the national interest, or when the person is already in transit and denying admission would cause undue hardship. A report must be submitted by the Secretary of State on claims made by individuals on the basis of religious-based persecution within 100 days of the Order, and a second report within 200 days of the Order. The Order also includes a provision to assist state and local jurisdictions with their involvement in the resettlement process.

Other Provisions

The Executive Order includes other provisions related to the entry of foreign nationals into the United States. These include the following:

  • Expedited completion of the biometric entry-exit tracking system. Three reports shall be submitted within the first year of the Order, and a report shall be submitted every 180 days until the system is completed and operational;
  • Review and Change of Visa Validity Reciprocity.  The Secretary of State is required to review all nonimmigrant visa reciprocity agreements, including all categories, duration of time, and fees. If the foreign country does not treat the U.S. national in a reciprocal manner, the Secretary of State will adjust the conditions to match;
  • Reports for Transparency. The Secretary of Homeland Security will publish a report for public viewing, every 180 days, a list of foreign nationals who have been charged, convicted, or removed from the United States based on terrorism-related activity; the number of foreign nationals radicalized after entry into the United States; information regarding the number and types of acts of gender-based violence against women; and any other relevant information.

As this Order is expansive, Greenberg Traurig will continue to monitor the conditions and changes. In addition, we expect additional Executive Orders related to immigration in the coming days and weeks. To receive updates, please subscribe to our blog.