Please check back for frequent updates to this post as legal challenges to President Trump’s executive actions work their way through the courts.
Understandably, many foreign nationals and those who work with them, including human resource departments, have been in a state of panic since President Trump’s executive actions signed late January 2017. In case you missed it, during his first week in office, President Trump issued several immigration-related executive orders that among other things banned admission of citizens of seven Muslim-majority countries, banned refugees from all countries, and mandated the building of a wall on the US/Mexican border.
Mainly as a result of the January 27 order, chaos ensued as different government agencies, judges, and airlines tried to interpret the confusingly written order, and protests erupted at US airports around the country. Certain foreign nationals were prevented from boarding flights to the US or if they had landed here were denied entry at airports, detained for long periods of time at airports, and allegedly coerced into giving up their Green Cards. In many circumstances, attorneys were not allowed access to the detained foreign nationals and at least 60,000 visas were revoked by the State Department. On Friday, February 3, a federal court in Washington State issued a nationwide injunction of the entire executive order. Nationals of the seven countries and refugees were once again allowed to travel to the US and Customs and Border Protection (CBP) allowed them to enter into the US. Most indicated that things went back to the pre-executive order status quo.
The Trump administration called the injunction “outrageous” and filed an appeal for an immediate cancellation of the injunction which was denied, and denied again on appeal. Hearings and motions continue. As of this writing, admission to the US is what it was before the executive order. In the meantime, draft executive orders on employment-based immigration including the H-1B visa were leaked and a bill aimed at reforming H-1B visas was introduced to the House of Representatives. A lot happened in the past week!
In an attempt to clarify what we do know, we have listed below some of the frequently asked questions about the executive orders, including actions signed and also in draft form, as well as the H-1B draft legislation. In general, when reading immigration-related news, it’s important to keep in mind that reporters often rely on draft documents, secondary sources, and leaks. It’s best to identify what type of government action the news item is referencing to determine the immediacy and likelihood of the effect. Key words to look for include: “draft,” “proposed,” “introduced bill,” “ordered,” “stay,” “temporary injunction,” and “emergency injunction.” Notably, while executive actions take immediate effect, the timeline for a proposed bill will be much longer, and draft executive actions and proposed bills often change—sometimes dramatically—before they are enacted, if at all. Onto the questions:
How can Trump do this?!
If you want the technical answer, the authority for an executive order can be found in the Immigration and Nationality Act (INA) Section 212(f) which states:
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the united States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.
There is little guidance given by the executive branch to interpret this broad authority but the Foreign Affairs Manual (FAM) delves into situations where the president can suspend entry. It enumerates classes of people based on their affiliation (such as with a military, rogue government officials, or individuals who have demonstrated “objectionable conduct”). The FAM narrowly identifies people based on their affiliations or actual conduct; however, Trump’s executive order applies extremely broadly to individuals based on their nationality or status as a refugee. And, of course, what is dressed up as a ban on individuals based on their nationality is arguably intended as a ban on Muslims and thus potentially contradicts the US Constitution’s First Amendment’s Establishment Clause, which prevents the government from officially giving preference to people of one religion over another. This is what will be tested in the court system in the next few weeks and months.
Can citizens of the seven countries named in the executive order now travel internationally?
As of this writing (February 9, 2017) the answer is technically “yes” because on Friday, February 3, a federal court in Seattle stayed the executive order; however, the White House continues to appeal the stay and will fight the underlying case as well. Given that there may be more changes and fluctuations in the validity of the executive order, it is recommended that no one holding passports from the seven enumerated countries (Sudan, Somalia, Syria, Iran, Iraq, Yemen, Libya) leave the US. Nationals of these countries who are outside the US and wish to travel to the US should consult with an experienced immigration attorney.
UPDATE MAY 24, 2017: On March 6, 2017, the Trump administration released a revised executive order addressing some of the concerns cited in the federal court’s stays of the previous order. It should be noted that the new order removes Iraq from the list of banned countries, bringing the total down to six. The revised executive order has also been blocked nationwide by federal judges in Hawaii and Maryland who issued preliminary injunctions prohibiting the enforcement of the order. Thus, the travel recommendation above remains the same.
I am a national of a country not included in the executive order. Can I travel?
Although relations between the US and many countries are strained, there is nothing in the executive order or in any draft executive orders of which we are aware that suggests that travel outside the US would be problematic for nationals of countries not mentioned in the executive order.
Are nationals of the seven listed countries who are Green Card holders or US citizens exempt from the executive order?
At this point all actions of the executive order are stayed meaning that the current guidance for nationals of those seven countries remains the same as it was before January 27. Even if the executive order is re-instated, Green Card holders and US citizens who are nationals of these seven countries should be okay to continue to travel under the guidance issued by DHS. Nonetheless, out of an abundance of caution we suggest nationals of the seven countries and even people who have recently traveled to one of the seven countries should consult an immigration lawyer before they board a plane.
I read that employers are going to have to pay $130,000 salary in order to hire H-1B employees now. Is that true?
No, it is not true. It is not even a law yet. Representative Zoe Lofgren introduced a bill to the House of Representatives about H-1B reform on January 24th. This is just a proposal. A change in H-1B processing is not even close to final—the two houses of Congress would need to debate, amend, and agree before the president could even sign it into law. That may never happen.
Having said all that, from our reading of the proposed bill, the $130,000 salary discussion relates to the amount of salary a “dependent employer” needs to pay an H-1B worker to exempt them from the extra obligations required of dependent employers. A dependent employer is one who has a significant number of H-1B employees relative to the size of the company.
The language in the bill, which is not even law, applies only to dependent employers and does not apply to all H-1Bs. At this point we are confident that employers do not need to change anything. If it appears that this bill or any other bill is likely to become a law and if it has significant impact on any part of the visa or immigration process we will certainly warn employers and foreign nationals.
I heard Trump wants to take away H-1B visas. Is that true?
While it certainly does appear that the Trump administration is concerned that US workers are being disadvantaged by our country’s current immigration laws and how they allow foreign workers to obtain visas to work in the US, and there was a draft executive order called “Executive Order on Protecting American jobs and Workers by Strengthening the Integrity of Foreign Worker Visa Programs,” it is critical to remember that no new order has been signed and may never be issued.
The language of the draft executive order talks of reform, not cancellation. It orders the secretary of homeland security to “consider ways to make the process for allocating H-1B visas more efficient and ensure that beneficiaries of the program are the best and the brightest.” Therefore, nothing in the draft order (nor in the proposed bill in the House) suggest simply eliminating this visa type.
UPDATE MAY 24, 2017: An executive order was signed on April 18, 2017. The executive order itself is incredibly vague when it comes to H-1B reform. The order will have no immediate impact on H-1Bs. It simply calls for the secretary of state, the attorney general, the secretary of labor, and the secretary of homeland security to “suggest reforms” to the system. Most substantive changes to the H-1B program would require legislative action or rulemaking and would take time to go through the necessary processes and so at this time the executive order has no actual effect on the current H-1B program.
Will there be any changes to the H-1B program in the new administration?
It is just too early to definitively answer this question; however, the draft executive order which has not been signed, instructs the secretaries of Homeland Security, the State Department, and the Labor Department to “restore the integrity of employment based nonimmigrant worker programs and better protect US and foreign workers affected by those programs.” The draft order reads as a directive to the government to research the statistics of the current laws and how they are followed in order to set up for a possible change of the laws to be made in the future. Like all the president’s executive orders to date, this is extremely vague. Again predicting possible changes is impossible from simply reading a proposed executive order which may never be signed. Any change in the law would have to go through Congress.
Is Trump going to get rid of employment authorization documents (EAD) for H-4 visa holders who are currently eligible?
Again, it’s too early to know the answer to that. While the draft executive order which has not been signed does call for a “review [of] all regulations that allow foreign nationals to work in the United States, determine which of those regulations violate immigration laws or are otherwise not in the national interest and should be rescinded, and propose….a rule…to rescind or modify such regulations,” there are no specific visa-types listed. If any changes specific to H-4s or EADs or, indeed, any other visa category is proposed, we will post that information immediately on the blog.
As we’ve written about previously, we certainly anticipate many more immigration-related actions from the Trump administration and as things develop we will update this blog and clients accordingly. But in the meantime, one thing everyone can do is make sure their voice is heard in the ongoing national debate. We’ve also previously written about ways everyone can support immigrants and refugees in these contentious times. It’s up to each individual to do what feels right to them but our firm will continue to fight for our clients and the rights of other foreign nationals.