What Employers Should Do Given the President’s Order Blocking Certain Foreign Nationals

Authored by Diane E. Metzger

Jan 30, 2017

President Trump’s executive order “Protecting the Nation from Foreign Terrorist Entry into the United States” temporarily suspends entry of both immigrant and nonimmigrant visa holders from seven countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. The executive order also suspends the Visa Interview Waiver Program, which is used by many H-1B visa holders to apply for a visa permitting them to return to the U.S. to resume work after temporary travel abroad.

While the situation remains very fluid, and court orders in various jurisdictions have stayed portions of the executive order, we are currently recommending that employers of foreign nationals proceed as follows:

  • Employees who are foreign nationals of one of the seven “Countries of Particular Concern” should not depart the U.S. for international travel regardless of their visa status. Individuals from these countries who are currently abroad and wish to return to the U.S. should contact their employer and immigration counsel immediately.
  • Employees who are foreign nationals from countries other than the seven countries designated in the executive order should, regardless of visa status, reconsider nonessential travel to and from the U.S. given the volatility of the situation and the possibility that additional countries may be added to the restricted country list.
  • If employers have foreign national employees planning to reenter the U.S., regardless of visa status and regardless of whether they are from those seven countries or not, they should alert immigration counsel of those travel plans so we can take steps to assist them before they begin their travel.

The order applies to individuals with employment-based visas, such as H-1B, F-1, and L-1 visas, lawful permanent residents or “green card,” holders as well as persons with dual citizenship with one of the countries on the restricted list.

The Department of Homeland Security has issued further guidance suggesting lessened restrictions on green card holders, stating that green card status “will be a dispositive factor in our case-by-case determinations”, but only to the extent that additional information does not indicate the individual is a threat to public safety and welfare. While this guidance provides much needed assurances to green card holders, it does not guarantee that all green card holders will be granted entry into the U.S.

The order gives the Secretary of State and Secretary of Homeland Security discretion to issue visas on a case-by-case basis to individuals from these countries. At this moment, it does not appear that a process is in place for granting these exceptions. The order also indefinitely suspends the entry of all Syrian refugees and suspends the admission of refugees from all other countries for 120 days.

Please contact Lowenbaum Law’s lead immigration attorney Diane Metzger if you have any questions or need assistance because of this new executive order.

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