March 7, 2017
Gibson Dunn previously issued several client alerts regarding President Trump’s January 27, 2017, Executive Order restricting entry into the United States for individuals from certain nations and making other immigration-related policy changes.
This client alert addresses the replacement Executive Order entitled "Protecting the Nation from Foreign Terrorist Entry into the United States," signed on March 6, 2017. It also addresses a recent announcement suspending expedited processing of H-1B visas.
I. Overview of March 6, 2017 Replacement Executive Order
The new order is in some regards narrower than the prior order, and its scope appears to be more clearly defined. However, there is still some ambiguity as to the process for obtaining waivers, and the order continues to provide for the possible extension or expansion of the travel ban. The order and the accompanying official statements also include considerably more material seeking to justify the provisions than contained in the prior order.
The Department of Homeland Security has released detailed Q&As and a fact sheet regarding the new order; additional guidance from the Department of State is expected.
Key features of the new order include:
- Effective Date. The effective date of the order is deferred for 10 days; the order goes into effect at 12:01 am ET on March 16, 2017. Sec. 14.
- Status of Prior Order. The new order fully rescinds and replaces the January 27 order. Sec. 13.
- Travel Ban For 6 Countries. Like the prior order, the new order suspends for 90 days entry for nationals of a number of Muslim-majority countries: Iran, Libya, Somalia, Sudan, Syria, and Yemen. Sec. 1(e).
- Exclusions and Exceptions to Travel Ban. The travel ban and related provisions have been narrowed and clarified in various respects:
- Iraq. Iraq is no longer identified among the affected countries. The other six nations designated in the original order are still covered. However, the order specifically calls for additional review when an Iraqi national who holds a visa applies for "admission," meaning upon arrival to the U.S. Secs. 1(g), 4.
- Lawful Permanent Residents. Lawful permanent residents (green-card holders) are explicitly excluded from the order. Sec. 3(b)(i).
- Current Visa Holders. Existing visas are not revoked by the order, and they can be used during the 90-day period otherwise covered by the order by the visa-holders under their existing terms, regardless of whether the visa-holder has previously been to the United States or is arriving for the first time. Those who had a visa physically marked as cancelled as result of the January order are also entitled to admission. Secs. 3(a), 12(c)-(d); Q&As 3, 5, 7.
- Dual-Citizens. Dual citizens of one of the designated nations are also explicitly excluded from the order provided that they are travelling on a passport of a country other than the six designated. For example, a dual-citizen of Somalia and the United Kingdom would still be eligible for admission to the United States if travelling on his U.K. passport. Sec. 3(b)(iv).
- Refugees, Asylees, and Convention Against Torture. Foreign nationals who are granted asylum status prior to the March 16 effective date, refugees already admitted, and those granted withholding of removal, advance parole, or protection under the Convention Against Torture are not barred from entry into the U.S. Sec. 3(b)(vi). Note, however, that under existing law, individuals with those statuses may need certain advance permission or authorization if they wish to leave and return to the United States without jeopardizing that status.
- Certain Diplomatic and Related Visas. As in the January order, diplomatic and diplomatic-type visas, NATO visas, C-2 (United Nations) visas, and G-1 through G-4 visas are excluded from the order. Sec. 3(b)(v)
- Travel Ban Waivers. The new order provides authority to certain Department of State and Homeland Security officials to grant waivers to the travel ban’s limitations on a case-by-case basis. The new order identifies nine scenarios in which such treatment "could be appropriate." These include a variety of hardship scenarios which arose under the January order, such as those needing urgent medical care or those who can document that they have "provided faithful and valuable service" to the United States government (e.g. foreign translators). Sec. 3(c). Importantly, these are still case-by-case waivers, not automatic exemptions. It is also not yet clear if individuals seeking waivers will be allowed to board flights to the U.S.
- Suspension of Visa Interview Waiver Program. As before, the Visa Interview Waiver program (often used by repeat business travelers from certain nations) is suspended. Sec. 9.
- Suspension of Refugee Admission Program. As in the January order, the Refugee Admission Program is suspended for 120 days, with a cap of 50,000 entrants for the current fiscal year upon resumption. Sec. 6. Unlike the January order, the new order does not indefinitely halt refugee admissions from Syria or prioritize religious minorities upon resumption. The treatment of those already granted refugee status but not yet in the United States is somewhat unclear. The DHS Q&A says such individuals "whose travel was already formally scheduled by the Department of State … are permitted to travel to the United States and seek admission," and they are covered by the text of the carve-out in Section 3(b)(vi). See Q&A 10. But the Q&A also says those individuals "are exempt from the Executive Order." Q&A 27. Admission thus may require a case-by-case waiver.
- Possible Expansion and Extension. Like the prior order, this order requires a global review to identify categories of individuals appropriate for further limitations. Secs. 2(e)-(f). Another provision requires re-alignment of any visa reciprocity programs, under which the United States offers visas of similar validity period and type (e.g. multiple-entry) on the basis of those offered to U.S. citizens. Sec. 10.
II. Impact on Current Litigation
There are approximately 20 active lawsuits challenging aspects of the January order. Additional, key parts of that Order are currently subject to a preliminary injunction issued by the United States District Court for the Western District of Washington. The Ninth Circuit declined to temporarily stay that injunction pending a fuller appeal. The Eastern District of Virginia has also issued a preliminary injunction against certain parts of the January order as it applies to Virginia residents and institutions.
There are hearings and briefing deadlines scheduled in both the Washington and Ninth Circuit proceedings, as well as in many of the other cases. Because the new order rescinds the old order, effective March 16, those challenges may become moot, and the Department of Justice has said it will be seeking dismissal. However, it is highly likely that some of the existing complaints and requests for relief will be amended to challenge the new ban. New challenges to the newly announced Executive Order are also anticipated.
It is difficult to predict how the courts will approach litigation, either substantively or procedurally. Given that the new order does not go into effect until March 16, there will be opportunity for more substantive (although expedited) proceedings than was the case with the original order. Gibson Dunn will continue to monitor challenges for possible impacts on the new order.
III. Issues for Companies to Consider
As with the January order, there is no "one size fits all" approach for companies addressing employee and business issues related to the new Executive Order. Accordingly, companies should again evaluate whether they will need to develop strategies to deal with the impact of the replacement Executive Order, both internally and as it relates to potential shareholder and business relations.
In the immediate term, companies should consider outreach to their employees, particularly those who are or may be affected by the Executive Order. Companies should also consider whether plans or policies are needed for travel by executives, employees, or other stakeholders. In many ways, the new order is clearer than the January order, but as we describe in more detail below it not clear how all aspects of the order will be implemented. Accordingly, employers may want to consider the following:
- Outreach to employees who may be affected. Companies should consider proactively identifying and reaching out to all employees who may be affected. As noted above, the Executive Order, on its face, applies to both immigrants and non-immigrants from the six covered countries. Thus, employees traveling for business or leisure may be equally affected. Note that different employees’ immigration statuses may compel differing guidance on how to approach any issues that arise in the enforcement of the Order.
- Outreach to employees who may have family members affected. It is important to remember that some of your employees, even if not directly impacted by the Executive Order, will have family and loved ones who are or may be impacted. Companies may consider providing counseling and support for employees with these concerns.
- Communicating with employees. Companies should consider identifying employees who frequently travel to and from the affected countries or who are visa holders from affected countries, to explain company plans with respect to the Executive Order. Given issues that arose for travelers in connection with the implementation of the original Executive Order in January, employees from affected countries who are currently outside the United States, but have a legal right to enter, should be advised to stay in communication with individuals in the United States about their travel plans, in the event they have difficulty re-entering the country, and have a plan to obtain appropriate assistance in that event.
- Identifying a point of contact. Consider identifying a contact point for any employee questions or concerns regarding the Executive Order. Furthermore, ensure that this contact is prepared to field questions from affected or potentially affected employees, to discuss visa renewal or travel to and from the affected countries, and to refer employees with specific issues to the appropriate resources.
- Communicating with shareholders, business partners and other stakeholders. Companies should consider whether communications with shareholders, business partners or other stakeholders regarding potential impacts on business as a result of enforcement of the Executive Order are appropriate.
- Modifying travel and meeting obligations. Companies should consider modifying (or allowing for employee choice regarding) employee travel obligations, as appropriate to the company’s business needs, to avoid potential difficulties with travel to and from the United States. Likewise, if companies have board members or executives affected by the Executive Order, or business stakeholders who will not be able to enter the United States due to the Executive Order, consider whether meetings can be conducted remotely or outside the United States. Companies involved in pending litigation that may require employee travel to the United States should consider seeking the advice of litigation counsel to determine what, if any, notice to the relevant court or parties may be advisable at this stage.
- Reviewing non-discrimination policies. Companies may wish to send reminders of applicable equal employment policies. Many employers included such statements in communications regarding the original Order. Companies may also wish to consider how their policies apply to employment and hiring decisions in light of travel restrictions.
This list addresses just some of the issues that companies will face in light of the Executive Order. Gibson, Dunn & Crutcher’s lawyers, including its employment, securities, administrative law, constitutional law, and sanctions teams, are available to assist clients with navigating these and other issues that arise with respect to enforcement of the March 6 Order.
IV. Suspension of Expedited Processing for H-1B Visas
On March 3, U.S. Citizen and Immigration Services (USCIS) announced it will suspend "premium processing" of applications for H-1B visas. This change is effective April 3, 2017, the first date for filing FY18 applications. The agency says that this is necessary to process back-logged petitions. It also says that "expedited" processing is still available for applications meeting certain criteria, and subject to "the discretion of office leadership." Applications that remain eligible for premium processing include those involving: Severe financial loss to company or person; Emergency situation; Humanitarian reasons; Nonprofit organization whose request is in furtherance of the cultural and social interests of the United States; Department of Defense or national interest situation; USCIS error; or compelling interest of USCIS.
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Gibson Dunn will continue to monitor these rapidly developing issues closely.
 "Executive Order Protecting The Nation From Foreign Terrorist Entry Into The United States," Mar. 6, 2017, https://www.whitehouse.gov/the-press-office/2017/03/06/executive-order-protecting-nation-foreign-terrorist-entry-united-states.
 See, e.g., Letter from Attorney General and Sec’y of Homeland Security, Mar. 6, 2017, https://www.dhs.gov/sites/default/files/publications/17_0306_S1_DHS-DOJ-POTUS-letter.pdf
 U.S. Dep’t of Homeland Security, "Q&A: Protecting the Nation From Foreign Terrorist Entry To The United States," Mar. 6, 2017, https://www.dhs.gov/news/2017/03/06/qa-protecting-nation-foreign-terrorist-entry-united-states.
 U.S. Dep’t of Homeland Security, "Fact Sheet: Protecting the Nation From Foreign Terrorist Entry To The United States," Mar. 6, 2017, https://www.dhs.gov/news/2017/03/06/fact-sheet-protecting-nation-foreign-terrorist-entry-united-states.
 U.S. Dep’t of State, "Executive Order on Visas," Mar. 6, 2017, https://travel.state.gov/content/travel/en/news/important-announcement.html.
 http://cdn.ca9.uscourts.gov/datastore/general/2017/02/27/17-35105%20-%20Motion%20Denied.pdf; https://cdn.ca9.uscourts.gov/datastore/opinions/2017/02/09/17-35105.pdf.
 U.S. Citizenship and Immigration Services, "USCIS Will Temporarily Suspend Premium Processing for All H-1B Petitions," Mar. 3, 2017 https://www.uscis.gov/news/alerts/uscis-will-temporarily-suspend-premium-processing-all-h-1b-petitions.
 U.S. Citizenship and Immigration Services, "Expedite Criteria," https://www.uscis.gov/forms/expedite-criteria.
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