Executive Order Bans Entry of Foreign Nationals From Seven Countries
Last Friday, President Trump signed an executive order banning the entry of foreign nationals from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen to the United States for a period of at least 90 days. The executive order, titled “Protecting the Nation From Foreign Terrorist Entry Into the United States,” applies to nationals of all seven countries. The Department of Homeland Security (DHS) has now advised that only travelers who present passports from one of the seven countries will be subject to the ban — meaning that dual nationals of one of these countries who present a passport from a non-listed country should not be subject to the ban. Although the ban initially applied both to immigrants and to nonimmigrants, meaning that it covered those with a temporary visa (for example, B-1 or H-1B) as well as U.S. lawful permanent residents, the Trump administration has now clarified that permanent residents are exempt from the travel ban, though they may be questioned as to their ties to those countries.
We expect that U.S. Citizenship and Immigration Services (USCIS) will halt processing of applications for adjustment of status filed by nationals or dual nationals of these seven countries until the ban is lifted. We also expect that anyone who is not a national or dual national of one of the listed countries, but who has traveled to one of these countries in the past five years, should anticipate additional questioning by a U.S. Customs and Border Protection (CBP) officer upon return to the U.S.
The executive order indicates that the departments of Homeland Security and State may, in the national interest and on a case-by-case basis, issue visas or other immigration benefits to foreign nationals otherwise subject to the ban. However, the exact process for applying for or receiving a waiver from the travel ban has not yet been disclosed.
While the ban will be in place until at least April 27, 2017, it could be extended should any of the seven countries named in the executive order fail to provide additional security-related information requested by the Trump administration. The administration has also indicated that the travel ban could be expanded in the future to include additional countries.
In addition to the U.S. entry ban, the executive order suspends a popular visa interview waiver program that was in place at U.S. consulates worldwide. This waiver program exempted some visa renewal applicants from an in-person consular interview. The suspension of the interview waiver applies to all U.S. visa applicants, regardless of country of nationality or citizenship. As a result of the additional strain that the suspension of the visa waiver program will bring to bear on consular resources worldwide, you should anticipate potential travel delays for foreign employees who are not subject to the entry ban but who are applying for U.S. visas.
The “Leaked” Draft Executive Order Hints at What Lies Ahead for Business Immigration
On the heels of the controversial executive order barring entry of nationals from seven predominantly Muslim countries, President Trump is now about to set his sights on business immigration issues. We have learned the following from a leaked draft of the executive order that President Trump is expected to sign this week:
- We expect that the EO will limit the ability of businesses to use the B-1 (business visitor) category to bring professionals who they employ abroad to the United States to provide services, regardless of the length of the intended period of time. This would be contrary to the long-utilized B-1 in lieu of H-1B provision, which allows certain qualified professionals employed abroad to enter the U.S. for short-term stays to perform services as long as they are not being paid by a U.S. source.
- The proposed EO will likely limit the ability of companies to file H-1B petitions for foreign national professionals unless they have first recruited for the position and unless they offer a level of wages that exceeds the prevailing or actual wages being paid to U.S. workers. And the quota for H-1B visas, already limited to a paltry 65,000 (plus 20,000 US advanced degree holders) per year, will be filled based on higher-level wage positions getting priority in the selection of H-1B cases.
- We also expect that the EO will effectively end the use of the E-2 (treaty investor) visa category by foreign companies that have invested heavily in their U.S. subsidiaries to qualify managerial and essential skills employees.
- The proposed EO will likely end the two-year STEM extension of optional practical training enjoyed by recent graduates with degrees in the STEM fields.
- The number of site visits to L-1 and H-1B petitioners will increase, and will be expanded to cover all temporary visas.
- The ability of companies to employ foreign national workers with employment authorization documents or similar grants of work-authorization will be seriously restricted.
Once the EO is issued, we will advise further if there are significant changes from the draft EO. As these likely changes would severely restrict business immigration, this memorandum lets you learn of them at the earliest opportunity.