On January 25, 2017 we saw the first of many policy changes expected from the new administration, as President Trump signed his first Executive Order on immigration. The Order is primarily aimed at restricting immigrants from predominantly Muslim countries and increasing security on the southern border. The Trump administration also has plans in the works to limit refugee programs. While the news is full of speculation as to various changes in immigration policy, this is what we know to be true as of today.
The Executive Order implements a minimum of a 30-day suspension of non-immigrant and immigrant visa issuance to individuals from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen. The suspension is said to be for the purpose of allowing the government to toughen its already stringent screening procedures in effort to weed out potential terrorists. It should be noted that the Order also allows the Dept. of Homeland Security to expand upon this list of countries.
Until we have more clarity on the situation and how it will play out in practice, we are advising clients from the above-named countries to remain in the United States. We are aware of at least one client from one of these countries whose application for an immigrant visa was put into administrative review the day before the Order was signed with no reasonable explanation. To be clear, the Order that we’ve seen only covers applicants for non-immigrant and immigrant visas – meaning such applications cannot currently be adjudicated. However, given the uncertainty at present we do advise that even individuals with approved non-immigrant visas or immigrant visas (also known as green cards) do not leave the U.S. at this time to avoid the potential of being refused readmission. It is prudent not to travel until there is a clear pronouncement as to how this Order will be interpreted by CBP, DOS, and USCIS.
The Executive Order also directs the start of construction on a wall on the southern border and the President has formally called for the hiring of an additional 5,000 Border Patrol agents and 10,000 immigration officers. Congress would have to approve the funding necessary to hire additional enforcement personnel, but construction of a wall can begin immediately pursuant to the Secure Fence Act, which was signed into law in 2006. The Secure Fence Act, however, only calls for up to 700 miles of a “physical barrier,” so Congress would have to appropriate new funding to construct a wall expanding the entire length of the nearly 2,000 mile border – which has been estimated to cost tens of billions of dollars. Our opinion is that these proposals do not attack the underlying problem with migration on our southern border and this money is not wisely spent.
The Trump administration also has plans to restrict and, in some cases, eliminate refugee programs. According to a draft Executive Order, Syrian refugees will be denied entry to the U.S. indefinitely, and refugees from the rest of the world will be barred for at least 120 days while security measures are reviewed. Ultimately, the Order would cut the total number of refugees resettled in the U.S. by more than half, from 110,000 to 50,000. While no official action has been taken in this regard, these policies or similar restrictions are likely to be put in play in the near future.
We expect a significant amount of litigation in response to the President’s actions and will be monitoring the situation closely. We note, however, that the President has plenary power to decide who has the right to enter the U.S., and courts therefore rarely review such initiatives. We will also be watching for changes to NAFTA, DACA, the H-1B program, and E-Verify mandates – but as of today, we are not aware of any definitive changes in this regard. However, the escalating rhetoric in relation to NAFTA is very unsettling, given President Trump’s public comments that it will either be renegotiated or the U.S. will pull-out, given that NAFTA is more than just the trade component President Trump has complained about.
** This newsletter/memo is provided for informational and discussion purposes only. It does not act as a substitute for direct legal contact on an individual basis **