Executive Orders Released by President Trump

Practice Areas

By: Jalpa Shah and Phani Bobba

Since taking the White House on January 20, President Trump has released several Executive Orders.  Please see below a summary and analysis of the Executive Orders already issued and   Executive Orders already drafted and released by the President.

Immigration Related Executive Orders

On a late Friday night of January 27, 2017, without any advanced notice, President Trump issued the Executive Order Protecting the Nation from Foreign Terrorist Entry into the United States.”

The most pertinent parts of this EO, affecting many individuals and Employers, are as follows:

  • Suspended the entry of all “immigrants and nonimmigrants” from Iraq, Iran, Sudan, Libya, Yemen, Somalia and Syria for 90 days (until April 27, 2017).
    • This includes all work visas and individual visitor visas.
    • Initially, green card holders were also included in this ban, but on January 29, Secretary Kelly issued a statement declaring the entry of lawful permanent residents to be in the national interest. Thus, LPRs are likely to be admitted, but may go through secondary screening to determine if they have strong ties to one of the listed countries.
  • Suspended the U.S. Refugee Admissions Program (USRAP) for 120 days.
    • Upon the resumption of the U.S. Refugee Admissions Program, DHS must “prioritize refugee claims made by individuals based on religious-based persecution, if the religion of the individual is a minority religion in the individual’s country of nationality.”
  • Although the practice seems inconsistent, citizens with dual citizenship with one of the listed countries may also be included in the ban.
  • Those who are currently in their green card procedure (adjustment of status) with an advance parole may also be affected.
  • USCIS has been asked to suspend all immigration benefit determinations filed by or on behalf of nationals of the seven countries.

In other parts, President Trump orders for the following actions:

  • Implement a uniform screening standard for all immigration programs.
  • Decrease the number of refugees allowed into the U.S. in fiscal year 2017 from 110,000 to 50,000.
  • Direct the DHS and National Intelligence to put together a list of countries that do not provide satisfactory information to assess possible entry of foreign nationals into the United States.
  • Direct the Secretary of State, DHS, National Intelligence, and FBI to device uniform screening standards for all immigration programs.
  • Direct the DHS to start a biometric entry and exit system.
  • Suspend the Visa Interview Waiver Program.

In light of the above ban, Federal Judges have responded to various cases filed:

  • Eastern District Court of New York: In the first ruling to take place in response to the ban, federal judge Ann Donnelly granted a stay to prevent deportation of individuals affected by the EO who are currently detained.
  • District of Massachusetts: Judge Allison Burroughs and Magistrate Judge Judith Dein on Sunday, Jan. 29, issued an expanded ruling to bar federal officials from detaining or removing individuals subject to the EO.
  • Alexandria, Virginia:, Judge Leonie Brinkema barred the deportation of “all legal permanent residents being detained at Dulles International Airport” for seven days. Also required that Customs and Border Protection to grant lawyers access to all affected individuals.
  • Seattle, Washington: Judge Thomas S. Zilly barred the deportation of two unnamed individuals until a hearing set on the following Friday.

In addition, in late night on January 30, 2017, President Trump fired the acting Attorney General Sally Yates as she informed the Justice Department lawyers not to defend the EO. Dana Boente is now the acting attorney general until Senator Jeff Sessions is confirmed by the Senate.

Actions for Employers

Here are some of the actions that can be taken by Employers:

  • Determine who is affected by the ban and cancel travel for those employees for 90 days.
  • Identify pending requests for immigration benefits filed on behalf of individuals from the affected countries listed in the ban.
  • Work with an attorney to assess the implications for each employee who is affected.
    • For those with pending applications, track their 240 days (for certain work visas) and other applicable grace periods to avoid any implications to the employee’s legal status.
  • Prepare for any changes in service from employers affected by this ban.
  • Prepare your foreign employees for more changes to come in the future.

Travel Advisory for Individuals

As an individual travelling or planning to travel within or outside the country, please keep the following in mind:

  • If you are a national of the 7 countries banned, please do not travel domestically or internationally.
    • Even if you have a dual citizenship, you may be affected.
  • If you are not a national of the 7 countries, it is recommended not to travel (at least for 90 days) because the current administration seems to issue executive orders without prior notice. While the current EO does not list other countries, we cannot be too sure of what can happen in the near future.
  • CBP may ask to review your social media at the POE – delete all your posts that negatively impact the Trump administration and be sure to have your phone password protected and disable fingerprint unlock. When asked about your religion or opinion of Trump, be creative in your response.
    • Only U.S. Citizens have the right to deny access to social media to anyone without a court order or warrant. If you are a U.S. citizen and they ask to review your social media, request to see a Judge. In case your passport is taken away, request a receipt of such action.
  • DO NOT sign Form I-407. Be sure to carry proof of your legal permanent residency (work, property, tax returns etc.).
    • Upon refusal to sign, you may ask for a lawyer.
    • If a lawyer is denied, ask them to issue a Notice to Appear (NTA).
    • If they continue to confiscate your GC, request a stamp that states “Evidence of Temporary Residence.”
  • Those on temporary visas are most vulnerable under this ban. If you fall in this category, as stated above, DO NOT TRAVEL.
    • The risk of traveling is that CBP may cancel your visa and issue a 5-year ban based on attempting to enter on cancelled visa (yes, this does not make sense and is not fair, but it has happened).

In addition to the above restrictions, which seem to already affect Tech giants like Google, President Trump may issue another executive order directly impacting the IT industry.  Although this is a proposed Order and has not been signed by the President, we are recommending certain actions for employers to take in preparation.

Proposed Executive Order On Visa Programs (not yet signed)

The draft Executive Order covers the alphabet soup of visa programs that are used by many tech companies. The main goal of this draft action seems to promote and prioritize American workers.

Specifically, the proposed actions in the draft EO are as follows:

  1. Within 90 days, review all regulations to determine which of the regulations violate immigration laws or are otherwise not in the national interest.
  2. Review parole program and terminate all existing parole programs that do not comply with immigration regulations. May seem to affect the International Entrepreneur Rule, which is a parole program.
  3. Within 90 days, submit a report listing options to incentivize employers to use E-verify.
  4. Initiate site visits for L-1 work sites (including end-client work locations) within 180 days and develop a plan to expand site visits for all programs.
  5. Reform the practical training programs (OPT) for foreign students in the STEM program to prevent disadvantages to U.S. students.
  6. Propose for notice and comment a regulation that could reform the AOS filings.
  7. Propose for notice and comment a regulation that could reform the E-2 treaty investor visa category.
  8. Provide report within 9 months on injuries caused by work performed by nonimmigrant workers in H-1B, L-1, and B-1 visa categories.
  9. Publish report on EADs issued.
  10. Publish report (twice a year) detailed number of foreign-born persons authorized to work in U.S.
  11. Publish reports on immigration patterns.

As proposed, the most immediate action will be the L-1 work site visits. Most of the actions seem to be for agencies to prepare and issue reports regarding the implications for the work visas on American jobs. The EO as proposed also does not decrease the number of individuals who will be allowed to work on H-1B. Considering the focus in the draft Order is on reviewing and creating reports, it is likely that the real changes to the work visas will occur upon President Trump’s review of such reports.

Actions for Employers

  • Post H-1B jobs on company website for additional proof when American jobs come into question.
  • Work with your immigration and employment attorneys to determine wages and avoid any claims at hiring “cheaper” talent from abroad.
  • The most immediate impact is likely to take place in 90 days after issuance of the order. This date will fall after the H-1B quota opens on April 3, 2017. For all employers looking to file in the next round rather than this year, it would be suggested to file during this quota period before changes may drastically affect the program based on the reports created by the directed agencies.

The Wall

On Wednesday, January 25, President Trump signed an Executive Order with the policy to:

  • Secure the southern border of the U.S. through physical construction of a wall.
    • Agencies have been directed to plan the design and find sources of funds.
  • Hire 5,000 additional Border Patrol agents, subject to the availability of existing funding,
  • End “catch and release” policy.
  • Identify all U.S. aid funds that have gone to Mexico in the last five years.
  • Take action to empower state and local law enforcement to act as immigration officers.
  • All actions are subject to availability of funds.

Parole, Asylum, Removal

  • Detain individuals apprehended on suspicion of violation of Federal or State law.
  • Expedite determinations of those apprehended with a claim to remain in the U.S. and promptly remove those whose claims are lawfully rejected (after any civil and/or criminal sanctions have been imposed).
  • Adjudicate asylum claims, by constructing and operating detention centers near the borders.

Deportation and Undocumented Immigrants

President Trump directed the Department of Homeland Security to:

  • Prioritize undocumented immigrants with criminal convictions and those who been charged with only a crime for removal.
  • Hire additional 10,000 immigration and customs enforcement officers, based on the availability of existing funds.
  • Prohibit federal funding, with the help of the Attorney General, to “sanctuary” jurisdictions, where local officials have declined to help enforce federal immigration laws.
  • Re-establish the community security program to enable state and local enforcement agencies to efficiently act as immigration agents.
  • Ordered to refuse to accept the return of undocumented immigrants, previously deported from the U.S.
  • Maintain a weekly dashboard of crimes created by undocumented immigrants in sanctuary jurisdictions.
  • Create an “Office for Victims of Crimes Committed by Removable Aliens” to aid victims of crimes committed by undocumented immigrants.

Non-Immigration Related Executive Orders

Affordable Care Act (ACA)

President Trump’s first executive order was aimed at rolling back Obamacare. This order allows secretary of health, human services and other agencies to waive the requirements of ACA to the maximum extent permitted by law.

Freeze on Regulations

President Trump announced a temporary freeze on all new federal regulations and the ones that were sent to the Federal Register. For regulations that have previously been published have not been into effect, the effective date must be postponed for 60 days for the new administration to review them.

No Federal Funding for Abortion Services

The President re-instated the “global gag rule” or the ” Mexico City Policy,” restricting support from US taxpayer’s dollars to all the International NGOs that perform or promote abortions.

Trans-Pacific Partnership (TPP)

President Trump signed an executive order to withdraw from the negotiations of TPP.

Freeze on Federal Hiring

President Trump issued a hiring freeze on all federal government positions. No vacant positons may be filled or created. The freeze excludes military, national security and public safety jobs.

Keystone XL Pipeline and Dakota Access Pipeline

President Trump proposed to support controversial Dakota Access pipeline, and invited TransCanada to re-apply for their application for constructing and operating the pipeline that would carry petroleum from Canada into the U.S.

Pipelines with American Steel

The Commerce Department has been directed to create a plan in 180 days, to maximize the use of U.S. steel in the pipelines to the maximum extent as possible.

Faster deadlines and approval for infrastructure projects

An executive order was issued, instructing the White House Council on Environmental Quality to expedite environmental reviewing process for high-priority infrastructure projects.

A Review of Manufacturing Regulations

President Trump issued an action instructing the Secretary of Commerce a plan to make the permitting process easier for U.S. manufacturers and 60-day review of regulations for American manufacturers.

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