Summary
On January 27, 2017, President Trump signed an Executive Order (the “Order”) entitled “Protecting the Nation From Foreign Terrorist Entry Into the United States.” It is a densely worded document, but the Order does the following:
- Requires “the Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, [to] immediately conduct a review to determine the information needed from any country to adjudicate any visa, admission, or other benefit” under the Immigration and Nationality Act;
- Requires the Secretary of Homeland Security to submit a report to the President within 30 days of the date of the Order (in other words by February 26, 2017); and
- Temporarily “suspend[s] entry into the United States, as immigrants and nonimmigrants, of such persons [from Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen] for 90 days from the date of this order (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas).”
Analysis
The Order could have an impact on any employer or business with employees, contractors or consultants who are foreign nationals of the Countries of Concern as defined herein.
The scope of Executive Branch authority under Article I of the Constitution over immigration issues is extremely broad but not absolute. For the purposes of this client alert, it is my professional view that from a constitutional standpoint, the President does in fact have authority to temporarily restrict entry into the United States as articulated in the Order. This is not a political statement. Had the text of the Order specifically referred to any particular religion, I believe the Order would be extremely vulnerable to a challenge on constitutional grounds.
The countries implicated in the Order were named in a 2016 law, passed and signed into law by former President Obama, so the identification of Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen as “Countries of Concern” predates the Order by a year.
It is important to note that the Order does not suspend the right to remain in the US for Green Card holders and other legal residents from the Countries of Concern that are already here. The Order suspends entry into the United States. The Order is essentially a temporary in-bound travel ban. It bars entryinto the United States, which is why there are already green card holders who have been turned away upon their attempt to return to the United States from abroad.
For those clients who employ workers that are visa holders or green card holders, please keep in mind that the right to reside in the United States is not absolute, and that is true of a visa holder, or a temporary or permanent green card holder. Even permanent green card holders can be deported if the holder does not observe the requirements contained federal immigration law.
There is a carve out in the Order for diplomatic visa holders, NATO visa holders, or G-1 - 4 visa holders. G-1 through 4 visa holders are generally those persons who are designated principal resident representatives of foreign governments recognized by the U.S. to enter into the U.S. to work for an international organization and not for personal business or pleasure.
You can read the full text of the Executive Order here.
From reading the news, it is evident there are already several federal lawsuits and petitions filed to challenge the constitutionality of the Order as implemented by the Department of Homeland Security. It will be a lengthy process until the US Supreme Court has an opportunity to weigh in. This situation is fluid and developing rapidly.