President Donald Trump has announced that he will sign an Executive Order concerning terrorist travel and security screening of foreign nationals early next week. It is expected that Trump will sign a separate Executive Order related to work visas, though the timing of that action has not yet been confirmed.

Terrorist Screening Executive Order

On Jan. 27, Trump signed an Executive Order that temporarily suspended the entry of nationals from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen. That Executive Order also suspended the U.S. Refugee Admissions Program (USRAP) for a period of four months.

A number of parties challenged the Executive Order on both statutory and constitutional grounds, and several courts enjoined implementation of parts of the Executive Order. In Seattle, a federal District Court issued a nationwide injunction, which was later upheld by a three-judge panel of the Ninth Circuit Court of Appeals. Currently, the travel suspension for nationals of the designated countries is not in effect and the U.S. refugee program is continuing as before as well.

New Developments

Yesterday, the president announced at a news conference that he will sign a new Executive Order related to security screening of foreign nationals. Later in the day, the Justice Department filed a motion with the Ninth Circuit Court of Appeals asking the court to stay further review pending issuance of the new Executive Order. Last night, the Court of Appeals agreed to pause further review of the Executive Order.

What to Expect

The text of the new Executive Order has not been released, but the government is expected to make changes to the Executive Order to increase the likelihood that it will survive judicial review. If the government retains the structure of the prior Executive Order, the government may not include foreign nationals who are permanent residents (i.e., green card holders) and limit application of the Executive Order to individuals who are outside of the U.S. The government could also change the underlying criteria and move away from a nationality-based travel suspension.

Separate and apart from the scope of the Executive Order, the government will need to decide how to implement the new order and coordinate its rollout with the ongoing litigation. Will the government provide a delayed effective date? Will the government provide notice to courts before issuing the Executive Order, or will the government act unilaterally and then notify the courts? The answers to these questions could dictate when the new Executive Order takes effect.

Opponents of travel restrictions will challenge any new Executive Order in federal court. It is difficult to predict at this time whether courts will allow the new Executive Order to go into effect or whether one or more courts will again halt implementation of the Executive Order pending a ruling on the legality of the government’s actions.

Travel Caution

Though the president stated that he will sign the Executive Order on Tuesday or Wednesday of next week, that timeline could change. Companies with employees who could be subject to the original Executive Order should continue to exercise caution. Affected employees should not depart from the U.S. Travelers who are outside the U.S. who could be subject to the original Executive Order are encouraged to seek entry before any new Executive Order is signed.

Work Visa Executive Order

The administration is expected to issue an Executive Order concerning employment-based visas, though timing is uncertain. The president did not directly address the work visa Executive Order during the news conference and no mention was made of it in the court filing. A draft order was leaked several weeks ago,and that version would direct the relevant government agencies to:

  • Review regulations that allow foreign nationals to work in the United States.
  • Assess the process for H-1B via allocation to ensure that the beneficiaries are the “best and the brightest,” which could mean prioritizing applications for those with higher wages or more education. The draft order does not propose any changes to this year’s lottery process.
  • Change the Visa Bulletin in a way that could lead to the return of a single Visa Bulletin model and a retrogression of priority dates.
  • Expand L-1 site visits within 180 days to include all places where L-1 visa holders work, including third-party worksites.
  • Plan to further expand the site-visit program to cover all visa categories within two years.
  • Investigate the extent to which American workers have been harmed by the employment of foreign workers or by the recipient of services performed by foreign workers.
  • Incentivize the increased use of the E-Verify program.
  • Clarify permissible activities on a B-1/B-2 short-term business visa.

BAL Analysis: BAL continues to follow immigration-related developments in the Trump administration closely and will alert clients of any significant changes should they occur.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact BerryApplemanLeiden@bal.com.

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