On January 25, 2017, President Trump issued three Executive Orders related to our immigration system and national security. Broadly speaking, the President’s orders focus on the following: border security, removal of undocumented immigrants from the U.S., and the visa issuance by U.S. consular posts abroad.
With the Executive Order entitled, “Border Security and Immigration Enforcement Improvements,” the President makes good his promise to “secure the southern border of the United States through the immediate construction of a physical wall on the southern border.” The President also calls for more detention facilities at the border, more asylum officers to conduct credible fear interviews, and more immigration judges to conduct the necessary proceedings as required by law. Perhaps most noteworthy in this Executive Order is the President’s order to “identify and quantify all sources of direct and indirect federal aid or assistance to the Government of Mexico” over the past five years, presumably to identify potential sources of funds to construct the wall. With this order, the President is signaling his intention to crack down on the perceived lax enforcement of immigration laws.
The second Executive Order, “Enhancing Public Safety in the Interior of the United States,” calls for the removal (deportation) of criminal aliens and those who pose a threat to national security. The Immigration and Nationality Act (INA) sets forth the grounds for inadmissibility and removability; but, the President goes further: He also calls for the removal of any undocumented immigrant convicted of any criminal offense (even a misdemeanor), those charged with any criminal offense, where such a charge has not been resolved, and those who have committed acts that constitute a criminal offense. These measures go beyond the scope of the INA.
The second order also calls for an end of federal aid to so-called “sanctuary cities,” i.e. those cities that offer safe harbor for undocumented immigrants who might otherwise be deported by federal immigration law enforcement officials. There are over 140 sanctuary cities across the U.S., including San Francisco, New York, Chicago, Seattle, Miami, Los Angeles, and Philadelphia. Additionally, the order calls for the restoration of the “Secure Communities” program, in place from 2008 to 2014, that relied on cooperation between federal and local law enforcement to identify, apprehend, and detain foreign nationals who pose a threat to public safety or national security.
The third and final Executive Order is entitled, “Protecting the Nation from Terrorist Attacks by Foreign Nationals.” In this order, President Trump points out that the visa issuance process has remained flawed since several of the 9/11 terrorists were able to successfully secure student visas to enter the U.S. and kill 3,000 people. The President calls for an immediate cessation of visas “and other immigration benefits” to nationals of “countries of particular concern” – Iran, Iraq, Sudan, Somalia, Yemen, Libya or Syria – for a period of thirty days. Further, the Executive Order goes on to suspend the U.S. Refugee Admissions Program (USRAP) for 120 days, to “cease refugee processing … and the admittance of nationals of Syria as refugees and to process and admit only 50,000 refugees during fiscal year 2017. The total number had been 110,000 for FY17, and approximately 30,000 have been resettled so far this fiscal year.
The full extent of the implementation of these Executive Orders remains to be seen. We urge employers to consult with immigration counsel to determine the most proper course of action in order to maintain compliance with immigration law.