On Jan. 27, 2017, President Donald J. Trump signed an Executive Order (EO) on Immigration entitled “Protecting the Nation from Terrorist Attacks by Foreign Nationals.” The EO impacts, among many other processes, the entry to the United States for immigrants and non-immigrants from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. The EO also impacts the Visa Interview Waiver program, widely utilized by a number of U.S. Consular Posts to renew visas for applicants. This is expected to have a wide effect, including on employers with foreign national employees who are nationals or dual nationals of the above listed countries and are here on work visas and as green card holders. To read the full GT Alert click here.
On Jan. 25, 2017, President Donald J. Trump signed two Executive Orders impacting U.S. immigration which are summarized below.
This Order addresses the recent surge of immigration by foreign nationals without proper documentation at the United States’ southern border with Mexico. The Order directs the government’s “executive departments and agencies to deploy all lawful means to secure the Nation’s southern border, to prevent further illegal immigration into the United States, and to repatriate illegal aliens swiftly, consistently, and humanely.”
Specifically, the Order implements a policy to secure the southern border through the “immediate construction of a physical wall on the southern border…” The Order goes on to define “wall” as “a contiguous, physical wall or other similarly secure, contiguous, and impassable physical barrier.” The Order itself instructs the Department of Homeland Security (DHS) Secretary to identify and allocate all sources of federal funds and to project and develop long-term funding requirements for the wall.
This Order also mandates the DHS Secretary to ensure the detention of undocumented foreign nationals apprehended for violating immigration law pending the outcome of their removal proceedings. It calls for action and fund allocation for new detention facilities at or near the Mexico border. Additionally, the Order commands the prompt removal of individuals whose legal claims to remain in the United States have been lawfully rejected after any appropriate civil or criminal sanctions have been imposed. In particular, the policy known as “catch and release,” whereby undocumented foreign nationals are released in the United States shortly after their apprehension for violating immigration law, is terminated. Subject to funding, an additional 5,000 Customs and Border Protection Border Patrol agents will be hired to execute new detention protocols.
In addition, the Order also establishes a policy “to end the abuse of parole and asylum provisions currently used to prevent the lawful removal of removable aliens.” The text of the Order indicates that immigration law has thus far been “exploited to prevent the removal of otherwise removable aliens.” It calls for more training of DHS personnel. In fact, new policy guidance in line with the Order is expected to be issued soon to all DHS personnel regarding the detention of undocumented immigrants.
The Department of Homeland Security Secretary and the U.S. Attorney General are expected to submit to the president a progress report on this Order’s directives within 90 days and 180 days, respectively.
This Order addresses unlawful immigration’s potential effects on U.S. national security and public safety. In particular, it states “Many aliens who illegally enter the United States and those who overstay or otherwise violate the terms of their visas present a significant threat… This is particularly so for aliens who engage in criminal conduct in the United States.” The Order also states “Many of these aliens are criminals who have served time in our Federal, State, and local jails.”
To improve the country’s security and safety, the Order seeks to impose the “faithful execution” of U.S. immigration laws by executive agencies. In doing so, the executive branch will ensure that “sanctuary jurisdictions” do not receive federal funds (except as mandated by law) if they fail to comply with applicable federal law. Generally in these jurisdictions (also known as “sanctuary cities”), undocumented immigrants are not prosecuted for lacking the proper immigration status. The Order states that the practice of “shield[ing] aliens from removal… [has] caused immeasurable harm to the American people…” and requires a comprehensive list of criminal actions committed by aliens and any jurisdiction that ignored or otherwise failed to honor any detainers with respect to such aliens, publicly published on a weekly basis. Following the Executive Order, representatives of several sanctuary cities stated they will remain as such, including New York City, Chicago, San Francisco, Los Angeles, Philadelphia, and Seattle.
The Order further calls for the enforcement of immigration laws, prioritizing removable aliens who have been convicted of or charged with criminal offenses. Subject to funding and law, an additional 10,000 Immigration and Customs Enforcement officers will be hired to carry out the enforcement. At the press conference, Press Secretary Spicer indicated that other enforcement tools would include withholding visas from countries to ensure they accept their nationals back following removal from the United States.
This Executive Order also encourages sanctions against countries that deny or unreasonably delay accepting a deportable national of that country. This could result in the discontinuation of granting immigrant and/or nonimmigrant visas to residents of that country. A blanket discontinuance of visa issuance could result in reciprocal treatment against U.S. visa applicants. To date, the U.S. government has identified 23 such countries, including China and India.
In addition, this Order calls for the reinstitution of the Secure Communities “SCOMM” program, whereby arrestees’ fingerprints are submitted to both criminal and immigration databases to facilitate their removal where appropriate. SCOMM’s reinstitution terminates the Priority Enforcement Program, which had replaced the original Secure Communities program in July 2015. To further address Americans’ public interest, the Order directs the establishment within ICE of an office to provide “proactive, timely, adequate, and professional services to victims [and their family members] of crimes committed by removable aliens.” The office is required to provide quarterly reports on the “effects of victimization by criminal aliens present in the United States.”
Both the Department of Homeland Security Secretary and the U.S. Attorney General are expected to submit to the President a progress report on this Order’s directives within 90 days and then again within 180 days.
It is expected that there will be additional immigration-related Executive Orders addressing DACA (Deferred Action for Childhood Arrivals), restricting immigration from certain Muslim-majority countries deemed to be a national security risk, and a review of legal immigration procedures and visa categories. Greenberg Traurig will continue to monitor activity on executive action related to immigration. To receive updates, please subscribe to our Inside Business Immigration blog and our EB-5 Insights blog.
On Dec. 4, 2017, the Supreme Court issued an order allowing President Trump’s Proclamation on Travel Ban to go fully into effect. With certain exceptions, this ban places entry restriction on nationals of eight countries – Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen. As previously reported, in September a U.S. District Judge in Hawaii blocked the Proclamation from taking effect, except for nationals of North Korea and Venezuela. On Nov. 13, the Ninth Circuit Court of Appeals temporarily put part of the lower court’s ruling on hold, allowing the Proclamation to take effect, but only for those individuals from the impacted countries who do not have bona fide ties to the United States.
The heavily anticipated new Executive Order (EO), “Protecting the Nation from Foreign Terrorist Entry into the United States,” banning nationals from six countries from entering the United States, was signed by President Donald Trump on March 6, 2017 with an effective date 10 days following on March 16, 2017. This new EO revokes and replaces the previous EO 13769 signed on Jan. 27, 2017. The replacement EO provides additional clarification that stemmed from judicial review. For a summary of EO 13769, and a history of events that transpired, please visit.
Highlights of changes in the new EO include:
- The six countries under the travel ban are Iran, Libya, Somalia, Sudan, Syria, and Yemen. Iraq has been lifted from the travel ban.
- Clarification has been given that lawful permanent residents are not subject to the travel ban, and dual nationals may use another passport (that is not from one of the six countries) to enter the United States.
- Waivers may be granted to individuals applying for a visa who are subject to the travel ban if: 1) denying entry during this period would cause undue hardship, 2) the entry would not pose a threat to national security, and 3) it would be in the national interest of the United States. Examples were provided of situations where a waiver would be appropriate.
- Entry under the U.S. Refugee Admission Program will be halted for 120 days from March 16, 2017. Notably, the blanket halt on Syrian refugees has been removed.
- The Visa Interview Waiver Program is suspended until further guidance from the Department of State.
- Those who are in the United States will not have their visas revoked.
The new EO provides an explanation for some components of EO 13769 that are now rescinded, amended, or clarified in this Order. A section-by-section analysis is below:
Section 2: Suspension of Visa Issuance- Iraq Removed
The text of this EO calls for the suspension of issuance of visas to nationals of Iran, Libya, Somalia, Sudan, Syria, or Yemen, except in case-by-case waivers, for 90 days from the effective date of the EO (March 16, 2017), while an ongoing assessment of the countries for terrorist threats is conducted. Notably, Iraq has been removed as one of the original countries subject to the travel ban. The reason cited is that the United States has been closely working with the Iraqi government and because of the military presence in Iraq, and Iraq’s commitment to fight ISIS, removing this country from the travel ban is justified.
In addition, the Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, will conduct a worldwide review to identify additional information, if necessary, from any country to ensure that the individual applying for a visa benefit is not a security threat. Within 20 days of March 16, 2017, a required report will be submitted to the President on the results of the worldwide review. Copies of this report will also be given to the Secretary of State, the Attorney General, and the Director of National Intelligence.
Once the report has been submitted to all parties, the Secretary of State shall request the foreign governments to provide the information needed within 50 days of notification. After the 50 day period has expired, the Secretary of Homeland Security, with the Secretary of State and the Attorney General, will submit to the President a list of countries where certain categories of foreign nationals should be prohibited from visa issuance because they have not provided the information. Additional countries may also be submitted for consideration to be added to the list of countries where restrictions or limitations are deemed necessary to protect the United States. In the same way, countries may be recommended for removal from the list as well.
Four reports, each submitted within 30 days of the effective date of the Order (March 16, 2017) to President Trump, are required to document the progress. Continue Reading New Travel Ban Order to Temporarily Halt Entry for Those Seeking New Visas from 6 Muslim-Majority Countries
The Department of State’s (DOS) January Visa Bulletin brings some New Years cheer for China and “All Other Countries” designations indicating that that the EB-3 subcategory for professionals and skilled workers will advance by nine months for China, from June 1, 2010 to March 1, 2011, and seven months for “All Other Countries,” from November 1, 2012 to June 1, 2013. Unfortunately, the EB-3 category for India continues to wallow in a mire of retrogression advancing only two weeks, from December 1, 2003 to December 15, 2003.
The EB-2 category offers little in the way of good reading with China advancing only a month, from January 1, 2010 to February 1, 2010, and India seeing no change from last month’s Bulletin, staying put at February 15, 2005. Continue Reading January 2015 Visa Bulletin: Some Good News, But Executive Action Benefits Cannot Come Soon Enough
On November 20, 2014, President Obama released the long-anticipated “Executive Action” on immigration reform. See here, here and here. We will also post additional materials made available. Late last summer, the President had postponed the release of such action until after the mid-term elections. Despite the cries of overreaching and lack of authority by the Republican leadership in the House and the Senate, the President has now released a plan to begin immediately the process of implementing some new policies through published guidance and to begin implementation of other policies through proposed regulatory changes. Some opposed to these actions have vowed to block the implementation through judicial intervention, attempts to defund the programs and potentially through other political means.
We will monitor the status of each change and post updates as they become available.
The following is a brief summary of the Executive proposed actions that will impact business. We have divided them broadly into three categories: 1) Changes done through guidance; 2) Changes that will need regulatory action; and 3) Changes that are still being discussed through a “Presidential Memorandum” process.
Administration Guidance without New Regulation
- Expansion of Deferred Action. Provide deferred action with employment authorization and advance parole, to include:
- Parents of U.S. citizens and Permanent Residents. (Must have lived in the U.S. for 5 years and must have entered by January 1, 2010.)
- Expansion of current Deferred Action Program to include Individuals who have resided in the U.S. for 5 years or more. There will no longer be an age limit.
- Parole in Place. Expand PIP eligibility and confirm that Matter of Arrabally & Yerrabelly applies to all who depart and return on advance parole.
- National interest waivers available for those in positions to create jobs, and those fulfilling shortage occupations.
- Exemption from the H-1B cap. Interpret the term “affiliated or related nonprofit entity” to an institution of higher education for H-1B cap-exemption purposes under INA §214(g)(5)(A) more flexibly.
Regulatory Changes through the Administration Procedure Act/Federal Register
- Enable entrepreneurs to be paroled into the U.S. and work if they are researchers, inventors or founders of businesses.
- Expand availability of optional practical training for graduating F-1s:
- Make the additional time available for STEM OPT graduates and expand the definition of STEM.
- Early Adjustment. Enable individuals who are eligible to apply for adjustment of status, but for a non-current priority date, to file for adjustment and receive work authorization and advance parole.
- Work authorization for spouses of H-1Bs. Finalize pending regulation.
- Improve the L-1 adjudicative process:
- Release of guidance on L-1Bs.
Presidential Memorandum on Visa Modernization – Further Discussion
- Recapturing permanent resident numbers based on numbers allocated by Congress but left unused. When the government is unable to issue the allocated immigrant visa numbers for preference immigrants in a particular fiscal year, despite sufficient demand for such immigrant visa numbers, then the Department of State will ensure those unused immigrant visa numbers are used in subsequent years, in order to better effect Congressional objectives.
- Derivative spouses and children not counted toward preference quotas.
- Other important issues related to help revise the visa process for businesses.
Compliance Concerns with the extension of Deferred Action
Extensions of temporary relief for workers already in the U.S. could make their status more confusing to employers and put business owners in an untenable position with regard to employment eligibility verification compliance. Employers are particularly vulnerable when a current employee comes forward and reveals that s/he has been working for the company under a false identity and asks the employer to provide evidence of his/her employment history in order to take advantage of Executive Relief. An employer faces civil and potentially criminal liability for past hiring of unauthorized workers and also may face discrimination charges for hiring newly documented workers who previously presented fraudulent documents. Additionally, employers who do provide documentation to unauthorized workers may be identified as a target for future government enforcement activity.
Legislation to permanently address many of the items identified in the President’s executive action is still very much needed. We will continue to monitor and bring our readers updates as these initiatives, and reactions to them, unfold.
CEOs from top corporations have joined the chorus of companies pushing for Immigration Reform. In a letter to Congress, these executives outlined several areas that need to be addressed through meaningful Immigration Reform in order for companies to successfully conduct business, including:
On June 9, 2021, USCIS issued three new Policy Alerts in the USCIS Policy Manual. These updates support Executive Order (EO) 14012, “Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans,” directing federal agencies to identify strategies that promote inclusion and identify barriers that impede access to immigration benefits, issued by President Biden on Feb. 2, 2021. The Policy Updates outline those changes that USCIS made, including:
- Clarifies the criteria and circumstances for expedited processing, including providing benefit requestors and USCIS officers further guidance on when expedited processing may be warranted as well as clarifying what USCIS considers an emergency situation, (e.g., a critical need to travel to obtain medical treatment in a limited amount of time). USCIS considers all expedite requests on a case-by-case basis and generally requires documentation to support such requests. A benefit request may be expedited in the following circumstances: it will cause severe financial loss to a company or a person; it is for emergency and urgent humanitarian reasons; it is for the interest of the U.S. government or it is to clear USCIS error. In addition, nonprofit organizations (as designated by the Internal Revenue Service) whose request is in furtherance of the cultural and social interests of the United States may request that a benefit be considered for expedited processing, even if premium processing is available for that benefit. The Policy Alert also clarifies that expedited requests for noncitizens with a final order of removal or noncitizens in removal proceedings are coordinated between USCIS and U.S. Immigration and Customs Enforcement. (ICE).
- Improves request for evidence (RFE) and notice of intent to deny (NOID) guidance. USCIS now returns to the adjudicative principles of a June 2013 memo that instructed agency officers to issue an RFE or NOID when additional evidence could potentially demonstrate eligibility for an immigration benefit. The Policy Alert provides guidance on when and how officers should issue RFEs and NOIDs as well as timeframes and options for benefit requestors to respond to RFEs and NOIDs. Only if the totality of the evidence submitted does not meet the applicable standard of proof, and the adjudicator determines that there is no possibility that additional information or explanation will cure the deficiency, then the adjudicator shall issue a denial. Pursuant to this update, an officer should generally issue an RFE or NOID in cases involving insufficient evidence before denying such cases. This reverses the previous administration’s more restrictive RFE and NOID policy.
- Increases the validity period for initial and renewal employment authorization documents (EADs) for applicants seeking adjustment of status under Section 245 of the Immigration and Nationality Act (INA). This is expected to reduce the number of employment authorization requests USCIS receives, allow the agency to shift limited resources to other priority areas, and ease an unnecessary burden on individuals waiting on the adjudication of their adjustment of status applications. This is particularly important for those applicants who may be stuck in a visa backlog and have a long-pending I-485 application. The guidance is effective immediately.
The changes by USCIS are consistent with the Biden-Harris administration’s priorities to eliminate unnecessary barriers to the legal immigration system and reduce burdens on noncitizens who may be eligible for immigration benefits, according to Acting USCIS Director Tracy Renaud.
The Biden administration has revoked Presidential Proclamation 9945 of October 4, 2019 – Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System, in Order To Protect the Availability of Healthcare Benefits for Americans (PP 9945).
PP 9945 was issued by the Trump administration and intended to suspend the entry of immigrants found to be a financial burden on the U.S. health care system. Per the proclamation, outside of very limited exceptions, individuals applying for an immigrant visa, including a diversity visa (i.e., the green card lottery), on or after Nov. 3, 2019, must demonstrate to the consular officer at the time of immigrant visa interview that they will be covered by approved health insurance within 30 days of their entry into the United States or have the financial resources to pay for reasonably foreseeable medical costs. Under the Proclamation, inability to meet this requirement will result in the denial of the immigrant visa application.
President Biden revoked Proclamation 9945 on May 14, 2021, on the grounds that it “does not advance” the interests of the U.S. in creating a more welcoming and inclusive environment for noncitizens. Additionally, President Biden has stated that Proclamation 9945 is also in tension with the policy set forth in section 1 of Executive Order 14012, issued on Feb. 6, 2021, “Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans.”
President Biden also stated that the Secretary of State, the Secretary of Health and Human Services, and the Secretary of Homeland Security will review any regulations, orders, guidance documents, policies, and any other similar agency actions developed pursuant to Proclamation 9945 and, as appropriate, issue revised guidance consistent with the policy set forth in this proclamation.
On April 27, 2021, the U.S. Citizenship and Immigration Services (USCIS) announced that it was reinstating its guidance to immigration officers to defer to prior nonimmigrant petition approvals when adjudicating requests for extension of stay that request continuation of employment without change. While the reinstated policy directs USCIS officers to defer to prior approvals in such circumstances, it does specifically allow re-adjudication in cases where petitions request amendments of stay, changes in employment, or otherwise present new material facts, as well as in cases of material error. In bringing back this policy, USCIS has rescinded its 2017 policy memorandum, which reversed this longstanding policy.
The reinstatement of this prior policy, initially issued in 2004, was announced by USCIS on April 27, 2021, and became effective immediately. This reinstatement is implemented consistently with President Biden’s Feb. 2, 2021 Executive Order, “Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans.”
Pursuant to this reinstated policy, where USCIS determines that it will not accord deference to its prior approval, reason for lack of deference must be articulated in a request for evidence or notice of intent to deny, and an opportunity afforded to the petitioner or applicant to respond. Pursuant to this policy, officers must obtain supervisory approval in cases where they seek to decline to defer to prior approvals in cases with no new material facts. With this policy back in place, USCIS may well reduce the number of extension-of-stay requests for evidence, which will in turn help with reduction of processing times.