29 January 2017
Category News Room
29 January 2017,

1/31 – Draft Executive Orders May Shine Light on Trump Administration’s Next Move

As promised, we are doing our best to keep our clients informed as to what changes to expect and how their status may be affected. In particular, we are paying close attention to several Executive Orders that have been drafted and include provisions aimed at:

  • Reducing the duration of Optional Practical Training for international students.
  • Eliminating the H-1B lottery system and creating a “preference system” to favor foreign students educated in the U.S., advanced degree holders, employees being paid a higher wages, and individuals with the most valuable skills.
  • Performing site visits for all L-1 holders, and expanding on-site visitation to all employment-based visa programs within two years.
  • Ending Obama’s Deferred Action for Childhood Arrivals (DACA).
  • Clarifying what activity is and is not permissible by aliens entering on business/tourist visas to ensure individuals are not working while in the U.S. in B-1 or B-2 status.
  • Conditioning certain immigration-related benefits on the employer’s participation in E-Verify and implementing other incentives to encourage employers to use the program.
  • Rescinding the International Entrepreneurs Rule, which was passed during the final days of the Obama administration and extends parole status to entrepreneurs as a creative alternative to a startup visa – which the U.S. currently doesn’t have.

Please note, these are only draft orders, most of which would not go into effect until at least 90 days after being signed. We therefore do not anticipate any changes to the H-1B lottery system this year. We will be in touch with any further updates!

1/30 Update

Late Sunday DHS indicated in writing that all Green Card holders would be admitted unless there was significant derogatory information that required further investigation.  Additionally, many reports have surfaced of CBP and the Administration defying the numerous court Orders issued over the weekend.  As a result people should remain vigilant and report any non-compliance.  While we expect that the vast majority of our clients will continue to travel without issue (only birth in the 7 countries is grounds for entry denial – while holding a visa), feel free to email our info@brownimmigrationlaw.com with your exact return flight information and we will arrange for an attorney to be available by phone when you land.  Note – we will not charge clients for ensuring an attorney is on call, however, we will of course bill should our services be needed to provide assistance or interact with CBP.  We will continue to provide updates as this continues to unfold.

This guidance should be read by anyone in the U.S. or seeking to enter the U.S. in a nonimmigrant or immigrant visa (Green Card), or employers who have employees holding status in the U.S.

First, and most importantly, this situation is constantly developing and there has been push back from thousands of immigration attorneys, along with the ACLU, concerned citizens and refugees, and various social justice and ethnic/religious organizations. The first major development occurred in Brooklyn Saturday, January 28th, where injunctive relief resulted in the release of individuals held pending removal at JFK Airport. Other legal actions have also been successful and DHS has reportedly released individuals who were being held. These orders prevent the detention and removal of people who are affected by that Judge’s Order, and this has been reported as relating to individuals currently held for removal or people in transit to the U.S. while holding a valid non-immigrant or immigrant visa. Individuals who have yet to depart for the U.S. may have to undergo the same legal challenges that those who were successful took.

Second, this EO lacks precision and clarity, which makes it difficult for us to anticipate the repercussions and advise our clients accordingly. It lacks adequate instruction to government agencies and includes multiple legal inconsistencies. This has left the collective immigration bar with several questions: does the EO only apply to the entry of individuals from named countries? Or, does is also apply to their receiving immigration benefits? In other words, will USCIS be able to issue an H-1B extension to someone born in Syria? Or, does it only prevent DOS from issuing a visa? Given the inconsistent language in many key parts of the EO, it is also unclear how someone who was perhaps born in Syria, but immigrated and became a Dutch citizen twenty years ago will be treated and whether such a person will be eligible for a visa and/or entry to the U.S. [note – AILA has reported that CBP was treating dual nationals as nationals of the excluded countries and deporting them].

Third, this will all become clearer as agencies have time to react and provide their own directions to the public and immigration attorneys. We understand the stress of this uncertainty and will do our best to provide updates on new developments and information as to what to expect. Please also know that, as the situation unfolds, AILA and other U.S. immigration attorneys are committed to protecting our clients and ensuring all immigration restrictions implemented by the new administration are within the bounds of the Constitution.

Based on what we do know, it is important to be aware of the following with regard to travel:

  • If you were born in one of the enumerated countries – Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen – even if you hold another country’s passport and no longer hold your original birth country passport, we do not recommend travel out of the U.S. if you are currently here (this even extends to people who hold a second nationality). If you are already outside of the U.S. and need to return to the U.S., contact an immigration attorney. If you are a client of ours, please contact our office and we will make plans for your reentry. If you are not a client, we recommend you contact both the ACLU in the location where you plan to land and an immigration attorney (www.aila.org has an attorney referral service).  It is important that people know when you plan to land so that legal action can be taken immediately if there is an attempt to remove you.
  • It is our understanding that the current injunctions against DHS/CBP are time limited. If DHS were to announce a suspension of removals at ports of entry, it would clear the way for people to enter while this measure is being tested.
  • An IMPORTANT element of this EO that affects EVERY NON-IMMIGRANT VISA HOLDER is the elimination of consular visa interview waiver programs. Currently, each consular office has the ability to set policy on when to waive interviews. Many consular posts waive interviews for people under 14 and over 75 and for people applying for a visa renewal (same work classification for same employer), as this helps these offices balance workload and avoid wasting time on low risk or previously vetted applicants. As of the EO’s signing, all posts were ordered to cancel these programs – every visa applicant must be interviewed.  As most of our clients know, the past year has been the busiest on record for U.S. consular posts, given new screening requirements and restrictions on the Visa Waiver Program implemented in December 2015. We therefore recommend that individuals requiring a visa book appointments with consulates well in advance of needing a visa, and that those individuals who don’t need a visa do not unnecessarily apply for one. Additionally, if you were planning to travel and expecting a scaled back and easy visa revalidation process, know that this is no longer the case and you must now book an interview. We expect consular wait times for appointments will grow larger than we’ve ever seen before, especially at high-volume posts. In an effort to continue serving the public, the EO has reactivated the “Consular Fellows” program to add more consular officers to visa-issuing posts. The immediate concern with this is that these additional resources lack the training, security clearances, and language skills required to be added within a reasonable timeframe and, when they do finally come on line, there is a concern about erroneous denial of visas that would otherwise be issued. To summarize – this EO will make getting a visa a longer and more difficult process, so please plan on getting a visa in advance and only if necessary, and be sure to confirm your visa appointment before leaving the U.S.
  • Some additional tests have been implemented for all visa applicants, which includes a religious component. We are unsure at the moment as to how the various government agencies involved in immigration are going to respond to these orders, especially given there is no immediate guidance or easily identifiable manner in which to conduct some of this screening. Again, if you are a client of ours and have a concern about your entry or visa application, be sure to let us know it advance. We can be on call to receive updates and will ensure we are available to connect with border officers if we feel there is a problem. This is the relevant  language relating to the increased vetting of visa applicants:
    • Screen all visa applicants for “likelihood of becoming a positively contributing member of society” and “ability to make contributions to the national interest”
    • Exclude those “who do not support the U.S. Constitution, or those who would place violent ideologies over American law. In addition, the United States should not admit those who engage in acts of bigotry or hatred (including honor killings, other forms of violence against women, or the persecution of those who practice religions different from their own)…”
  • We had originally reported that these travel restrictions would exist for 30 days. However, there are a number of different timelines in the EO and it now appears the entry and visa limitations will exist for the next 90 days at a minimum. As reported in our initial update, it also includes the exclusion of refugees already vetted and approved for travel for the next 120 days.

To be clear – while this note discusses those who should have a concern with travel or visa issuance at this time, we expect that the vast majority of our clients will face no travel concerns while traveling on current visas, so long as they are not from one of the enumerated countries. We do ask that anyone who encounters any unusual questions to please let us know so that we can stay abreast on how inspections and visas are being handled. We will report any and all concerns to AILA and, if necessary, the ACLU.  We know that those of you of the Muslim faith who are traveling and are concerned with the language suggesting a religious test may be fearful of how reentry will be handled – thankfully, we have not yet received any reports that are concerning. We do invite clients of ours to email us at info@brownimmigrationlaw.com with any planned reentry time/date and we will respond with an attorney contact who will be available, should you wish to have legal assistance as additional security.

As a final note, we understand the delicate and political nature of President Trump’s immigration initiatives and we respect everyone’s right to an opinion on this issue. However, as immigration attorneys and advocates for our clients, it is our opinion that these Orders are unconstitutional and contrary to our nation’s long-standing principles of acceptance and diversity.

While we agree it is important to address and protect the security of this nation, so as to provide a safe place for citizens to live and pursue their dreams, we do not agree with eliminating sensible visa policies in order to do so. As lawyers, we are especially troubled by President Trump’s introduction to the EO, which is dark and foreboding, states opinion as fact, and makes claims that do not withstand scrutiny (per CNN reporting with Peter Bergen). In our opinion, the order clearly lacks constitutional authority and appears to have been drafted by individuals without expertise in immigration matters, thus the unintended consequences we have seen (Note – Rudy Guliani has confirmed publicly he was responsible for drafting the EO).  As the executive branch is supported by agencies of experts charged with the responsibility of reviewing and modifying policy and procedure, it is our opinion that DOS and DHS should be responsible for implementing any necessary changes relating to immigration.

If you feel strongly that this EO is unconstitutional or an inappropriate policy approach then you should voice your concern to DHS so that your opinion is recorded and considered during this review period.

** 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 **

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