What is the Executive Order?

On Friday January 27, 2017, US President Donald Trump issued an Executive Order to "Protect the American people from terrorist attacks by foreign nationals admitted to the United States," an order which has an immediate impact on nationals from seven designated countries.[1]

Entry into the United States by these nationals is suspended for 90 days.

Who does the Executive Order apply to?

  • It applies to nationals of seven countries: Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen[2]
  • On Sunday, January 29, 2017, the White House confirmed that the order does not apply to green card holders who have been granted permanent residence in the US, or naturalized US citizens.
  • There is confusion over the status of dual nationals. In a statement on Sunday, January 29, 2017, the UK Foreign Office confirmed, after speaking to the US, that UK citizens with dual nationality with one of the relevant countries will not be affected, but may face extra checks if travelling to the US directly from one of the relevant countries. However, on Monday, January 30, 2017, the US Embassy stated that travellers with "dual nationality of one of these countries will not be permitted for 90 days to enter the US or be issued an immigrant or non-immigrant visa". There does, however, still appear to be an exemption for dual nationals of the UK and one of the relevant countries, "when travelling on a valid UK passport and US visa". The order also provides that "[t]he Secretaries of States and Homeland Security may, on a case-by-case basis, and when in the national interest, issue visas or other immigration benefits to nationals of countries for which visas and benefits are otherwise blocked."

How long will it apply for?

The suspension of immigrant and non-immigrant entry into the United States is in effect for 90 days from the date of the order. The order therefore applies until nearly the end of April 2017.

Is anyone challenging the validity of the Executive Order?

  • Federal judges in Brooklyn, Massachusetts, Virginia and Washington have issued injunctions temporarily preventing the removal of refugees and those with valid visas. The Department of Homeland Security has indicated it will comply with the rulings whilst still otherwise implementing the Executive Order.
  • In the UK, the Prime Minister has stated that she does "not agree" with the Executive Order and will raise it with the US if it impacts on British citizens. A spokesman has said, "We are studying this new executive order to see what it means and what the legal effects are, and in particular what the consequences are for UK nationals."

What is the immediate impact on the affected nationals?

  • It appears US Customs and Border Protection has ordered airlines to stop passengers from the relevant countries from boarding flights and American diplomatic posts have been instructed not to conduct any more visa interviews and to halt the processing of any pending visas, subject, as noted earlier, to the discretionary authority of the Secretaries of State and Homeland Security, referenced earlier.
  • The White House has stated that border agents have "discretionary authority" to subject any travellers, including American citizens, to additional questioning and scrutiny if they have been to any of the seven countries mentioned in the Executive Order. [This has always been the case.]
  • It appears there is currently confusion as to how consistently airport personnel are applying the court rulings.
  • Our understanding at present is that the Executive Order does not require nationals from the countries in question who are already working in the US to leave the country.

What can we expect going forward?

  • The suspension of entry into the US of nationals from the seven relevant countries is the first step in a process by which President Trump intends to review the information the US needs from any particular country in order to properly adjudicate any visa, admission or other benefits. The information must determine that any individual seeking a visa etc is who they claim to be and is not a security or public-safety threat. A report will be produced in 30 days.
  • Following production of the report, all foreign governments that have not supplied the relevant information will be asked to provide it within 60 days. After the expiry of 60 days, the President will be provided with a list of countries recommended for inclusion on a Presidential proclamation that would prohibit the entry of foreign nationals from the countries that have not provided the information, until compliance occurs. Additional countries may be added at any time.
  • By the end of March 2017, therefore, we should know the initial list of nationals who are (further) impacted.
  • Visas may still be issued, however, when in the national interest.
  • In addition, there will be:
    • Implementation of a uniform screening program to identify individuals seeking to enter the US on a fraudulent basis with the intent to cause harm or who are at risk of causing harm subsequent to their admission
    • Expedition of the completion and implementation of a biometric entry-exit tracking system for all travellers to the US
    • Immediate suspension of the Visa Interview Waiver Program
    • Review of visa reciprocity agreements.

What steps do impacted businesses need to take?

Employers should:

  • Take immediate steps to identify any employees who are impacted by the Executive Order and the job roles that they carry out
  • Set a strategy for managing the impact on affected employees including:
    • Deciding urgently how any affected employees who are unable to return to the US for 90 days will be supported financially, with accommodation, etc.
    • Identifying the extent of the impact of employee absence on specific business workstreams
    • Identifying how the affected business workstreams can be supported or covered for the next 90 days
    • Identifying whether the affected employees can be effective in carrying out their role from a remote location or whether there are suitable alternative roles they can carry out on a temporary basis
    • Determining a plan to manage any extension to the 90-day period including:
      • Carrying out a comprehensive review of the affected employees' contracts of employment, in particular any contractual provisions relating to flexibility in the job role and mobility
      • Assessing whether there are opportunities to redeploy the affected employees through e.g. suitable alternative employment