By: Christian S. Allen, Of Counsel, Dickinson Wright
As everybody has likely heard by now, President Trump issued another controversial Executive Order late last Friday, which made sweeping changes to several aspects of the US immigration system. There has been an unprecedented public response to the Order, and a lot of understandable confusion and concern for companies and individuals around the world. The Order was issued with almost no advance notice to the public, and also apparently without any consultation with the various government agencies responsible for enforcing the immigration laws. Those agencies were caught completely off-guard this past weekend, with no guidance from the White House about its intentions, nor any definitions for many vague terms used in the Order. It also became immediately clear that the Order was going to have a direct impact on several groups of people who were not supposed to be affected, as well as many other unintended consequences for lawful immigrants both inside and out of the US. By late Sunday night, the Secretary of the Department of Homeland Security was scrambling to minimize the unintended harms, and triggered a “national interest exemption” provision in the Order for certain individuals.
Over the past 4 – 5 days, many of the most pressing questions surrounding the surprise Order have been largely sorted out, and some formal guidance is now coming out of the relevant government agencies. If you are interested, the USCBP agency has created a website with some relatively non-partisan and accurate statistics about the Order (see: https://www.cbp.gov/border-security/protecting-nation-foreign-terrorist-entry-united-states). Hopefully, employees who were identified as potentially being directly affected by the Order were already proactively alerted last Friday evening. Here below are several additional things to consider, which could have an impact on companies and/or employees during the next few months, and which also may help to calm the fears of understandably nervous workers:
- The Order only directly impacts employees who have some close connection to the seven countries specifically identified in the Order (e.g. they were born in one of those countries, are a dual-citizen with one of them, etc.). Citizens of any other countries, who have no ties to the seven countries listed in the Order, are safe and can continue to work and travel freely, as before.
- US citizens holding a valid US passport are similarly still fine to continue to travel and reenter the US as before, even if they are also a dual-citizen of one of the seven countries listed in the Order.
- On the other hand, all non-immigrant (temporary) and immigrant (permanent) US visas for citizens from the seven countries listed in the Order have been formally cancelled by the US Department of State last Friday evening. Anybody born in or a citizen of one of those countries, who is currently in the US can remain here, but should absolutely not travel without consulting with a competent immigration attorney first.
- As a result of the DHS Secretary’s quick action on Sunday night, anybody who was born in or is a citizen of one of the seven countries listed in the Order, and who is currently a Lawful Permanent Resident of the US (i.e. holds a valid “greencard”), will most likely be able to continue to travel freely. However, because that is a discretionary action, we recommend consulting with at attorney first, before any such international travel occurs.
- Any Lawful Permanent Residents reentering the US who are asked to voluntarily relinquish their status and greencard at the airport should refuse to do so. Permanent Residents cannot be denied entry to the US solely because of their refusal to relinquish their status. Only an immigration judge can order their status to be rescinded. If told at the airport that their status is somehow invalid, Permanent Residents should politely decline to sign any I-407 application form given to them, otherwise cooperate with the USCBP officers, and then contact their attorney immediately upon exiting the airport or border area.
- Finally, the Order did also cancel a visa program which will likely impact all foreign national employees working temporarily in the US. For many years, US consulates and embassies abroad have waived in-person interviews for certain visa applicants who were well-known to the US government, and who had been previously, extensively vetted as part of an earlier visa application process. Unfortunately, all of those people will now have to schedule and appear for an in-person interview for each and every subsequent US visa application made at any US consulate or embassy, anywhere in the world. It’s virtually certain that this will increase visa processing and appointment wait times at most consulates and embassies. So, employees traveling abroad who need to apply for a new visa sticker in their passport in order to return to the US, should plan on longer processing delays at the consulate. Ultimately, visa approval rates should remain the same for employees with no connection to one of the seven countries in the new Order. However, the visa processing delays will likely cause travel plans to need to be changed or extended.
As the impacts of this Executive Order (or any others which the President signs) continue to develop, we will be sure to notify you of anything which may further impact you or your employees. In the meantime, as always, feel free to reach out to any of the Dickinson Wright Immigration Group attorneys for additional information and/or for specific questions or concerns.
Christian S. Allen
Of Counsel – Dickinson Wright