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Articles Posted in Executive Action

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UPDATE: Please see our blog post here for the complete details of the newly released order. 

Today, Monday June 22, 2020, President Trump is expected to sign a new executive order that will extend his previous April 22nd order set to expire today, and will extend restrictions to apply to H-1B, H-2B, L-1, and J foreign workers to protect American jobs as the economy recovers from the COVID-19 lockdowns nationwide. The new executive order is expected to pause new H-1B visa petitions for foreign workers, H-2B visas for nonagricultural seasonal workers, certain J work and education exchange visitor visas, and L executive transfer visas for managers of multinational corporations. The President confirmed issuance of the order in a recent interview with Fox News.

The executive order is expected to be in effect until at least the end of the year and will not impact those who have already been issued or approved an H, L, or J visa.

Although the executive order has not yet been released to the public, a senior official from the Trump administration has spoken to the media on condition of anonymity confirming the issuance of the order. The official stated that the administration has justified issuance of the new order as a way to eliminate competition with foreign workers and make jobs available to American workers during this pandemic.

To read the April 22nd proclamation click here.


Are there any exemptions?


Yes. The order will include a number of exemptions for food processing workers seeking H-2B visas, H-2A agricultural workers, health care professionals working to mitigate the effects of COVID-19, J-1 medical physicians, cases that are deemed in the national interest, as well as all other exemptions originally included in the April 22nd Presidential proclamation which are as follows:

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On May 7th just days after the President signed his controversial April 22nd executive order limiting the immigration of certain aliens to the United States for 60 days, Republican senators rallied together to urge the President to pass more immigration restrictions—this time targeting nonimmigrant foreign workers.

Republican Senators Tom Cotton of Arkansas, Ted Cruz of Texas, Chuck Grassley of Iowa, and Josh Hawley of Missouri fired off an impassioned plea to the President asking him to suspend all new guest worker visas for a period of 60 days, and certain categories of new guest worker visas for at least the next year until unemployment levels have returned to normal.

In their letter, the Senators justified their request stating that, “the United States admits more than one million nonimmigrant guest workers every year, and there is no reason to admit most such workers when our unemployment is so high.” The letter continued “given the extreme lack of available jobs for American job-seekers as portions of our economic begin to reopen, it defies common sense to admit additional foreign guest workers to compete for such limited employment.”

The Senators praised the President for passing the April 22nd proclamation but said that more needs to be done because guest worker programs “remain a serious threat to the U.S. labor market’s recovery.”

The Senators said that exceptions to the 60-day suspension should be rare and limited to time-sensitive industries such as agriculture and issued only on a case-by-case basis when the employer can demonstrate that they have been unable to find Americans to take the jobs.

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Yesterday evening, President Donald Trump made an unusual announcement via twitter stating, “In light of the attack from the Invisible Enemy [COVID-19], as well as the need to protect the jobs of our GREAT American Citizens, I will be signing an Executive Order to temporary suspend immigration into the United States!”

Since that tweet, no executive order has been released by the White House and no details have been provided relating to what that executive order might include, who might be affected, and how long the temporary suspension might last.

According to NPR, an official from the Department of Justice reported that the draft executive order is currently under review by the Office of Legal Counsel.

Is it worth noting that at present United States Consulates and Embassies abroad have already suspended routine visa processing and are not taking appointments for visa interviews until further notice. USCIS is still accepting and adjudicating petitions for immigration benefits as usual, however USCIS field offices, ASC offices, and asylum offices are closed to the public until May 3rd.

Responding to the President’s tweet, White House Press Secretary Kayleigh McEnany said today in a statement that the President, “is committed to protecting the health and economic well-being of American citizens as we face unprecedented time,” she continued, “As President Trump has said, ‘Decades of record immigration have produced lower wages and higher unemployment for our citizens, especially for African American and Latino workers. At a time when Americans are looking to get back to work, action is necessary.”

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Several weeks ago, the President signed an executive order preventing undocumented immigrants from applying for asylum.

On Monday, a federal judge from San Francisco issued a nationwide injunction, forcing the government to continue to accept asylum claims by undocumented immigrants, regardless of where or how they entered the United States. As a result, the President’s executive order will be suspended until a decision is reached by the court in the lawsuit East Bay Sanctuary Covenant et al., v. Donald J. Trump, et al.,

The President hoped that his executive order would curb illegal immigration at the Southern border, ahead of the arrival of a large immigrant caravan from Central America.

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On November 9, 2018, the President unveiled a new executive order, this time targeting asylum seekers from Central America.

Over the last few weeks, a large caravan of immigrants from Central America, bound for the United States, has made headlines. In a recent campaign ad, the Trump administration depicted individuals forming part of the immigrant caravan as criminals and violent gang members.

The President has not shied away from commenting on the caravan. In an October tweet, when news first spread of the caravan, the President said, “In addition to stopping all payments to these countries, which seem to have almost no control over their population, I must, in the strongest of terms, ask Mexico to stop this onslaught—and if unable to do so I will call up the U.S. Military and CLOSE OUR SOUTHERN BORDER!”

Trump is now delivering on his promise. Trump has now signed an executive order to temporarily suspend the entry of certain aliens entering through the southern border.

The executive order reads:

Under this suspension, aliens entering through the southern border, even those without proper documentation, may, consistent with this proclamation, avail themselves of our asylum system, provided that they properly present themselves for inspection at a port of entry.  In anticipation of a large group of aliens arriving in the coming weeks, I am directing the Secretary of Homeland Security to commit additional resources to support our ports of entry at the southern border to assist in processing those aliens — and all others arriving at our ports of entry — as efficiently as possible.

But aliens who enter the United States unlawfully through the southern border …. will be ineligible to be granted asylum …. Those aliens may, however, still seek other forms of protection from persecution or torture.

Who does the Executive Order apply to:

Aliens who enter the United States across the international boundary between the United States and Mexico after November 9, 2018. The suspension will expire 90 days after November 9, 2018, or the date on which an agreement permits the United States to remove aliens to Mexico.

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The United States Court of Appeals for the 9th Circuit has spoken. In their unanimous opinion, a three-judge panel of judges held that the President’s decision to rescind the DACA program by way of executive order was arbitrary and capricious.

After a long and contentious hearing in the case, Regents of the University of California v. the United States Department of Homeland Security, the judges of the Ninth Circuit Court of Appeals, were ultimately convinced that the government’s decision to rescind the DACA program, “was motivated by unconstitutional racial animus in violation of the Equal Protection component of the Fifth Amendment.”

The Court further decided to leave a preliminary injunction in place to give the district court an opportunity to consider whether the Plaintiffs are likely to succeed on the merits of their Equal Protection claim against the government.

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Image Courtesy of Gage Skidmore

USCIS has finally announced that the H-1B computer-generated lottery took place on April 11, 2017 to select the necessary petitions to meet the 65,000 visa cap for beneficiaries holding a U.S. bachelor’s degree or its equivalent, as well as the 20,000 visa cap for beneficiaries holding a U.S. master’s degree or higher. The announcement came a bit late this H-1B season, but you can now rest easy knowing that it has taken place.   On April 7th USCIS announced that they had received more than enough H-1B petitions necessary for fiscal year 2018. USCIS disclosed that they received 199,000 H-1B petitions this filing year.

Our office has already received 3 receipt notices for the “master’s” cap or advanced degree exemption, and 2 receipt notices for the “regular” cap as of April 20, 2017. 

USCIS will continue to mail receipt notices for selected petitions throughout the month of April and likely into early May.

If your petitioner has been monitoring their bank account closely and has noticed that the filing fees were charged to the account, that means that the H-1B petition was selected. Even if the filing fees have not yet been charged to your petitioner’s bank account, that does not mean that your H-1B petition was not selected. H-1B applicants must wait patiently to see if they were selected in this year’s lottery.

USCIS will not begin mailing out unselected H-1B petitions until around June through the month of July.

As a reminder, premium processing for H-1B petitions was suspended on March 3rd and will remain suspended for up to six months.

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Ninth Circuit Court of Appeals San Francisco, CA

A three-judge panel from the Ninth Circuit Court of Appeals has unanimously ruled that the President’s Executive Order “Protecting the Nation from Foreign Terrorist Entry into the United States” banning the entry of immigrants and non-immigrants from seven Muslim-majority countries will not be reinstated. The Court refused to reinstate the Order after hearing oral arguments from the solicitor general of Washington state arguing for the states of Washington and Minnesota, and counsel from Washington D.C. The panel was tasked with reviewing a temporary restraining order (“TRO”) that was handed down by a federal judge from Seattle, an order which brought President Trump’s Executive Order “Protecting the Nation from Foreign Terrorist Entry into the United States” to a screeching halt. Since then several lawsuits have been filed against the President’s executive order and are making their way through the courts.

The Court considered four central questions before reaching their decision:

  • Whether the stay applicant “Government” has made a strong showing that he is likely to succeed on the merits;
  • Whether the applicant “Government” will be irreparably injured absent a stay;
  • Whether issuance of the stay will substantially injure the other parties interested in the proceeding and;
  • Where the public interest lies.

The Court concluded that the government failed to satisfy the first questions, and that arguments made by the government’s attorney in support of the last two questions did not justify the issuance of a stay to lift the temporary restraining order and reinstate the Executive Order. The Court reasoned that the government failed to show that it would be likely to succeed on appeal, noting the seriousness of the allegations raised by the States regarding religious discrimination and significant constitutional questions. In a powerful statement the Court noted that “the government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States.” The Court further stated that the States “offered ample evidence that if the Executive Order were reinstated even temporarily, it would substantially injure the States and multiple other interested parties.”

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Yesterday, January 29, 2017 the Department of Homeland Security released a statement regarding President Trump’s executive order “Protecting the Nation from Terrorist Attacks by Foreign Nationals” which barred the entry of both immigrant and non-immigrant foreign nationals from 7 majority Muslim countries and suspended entry of Syrian refugees until proper vetting and security mechanisms could be put in place. The Department commented on the impact of a federal court order issued Saturday night which temporarily suspends enforcement of the executive order, until a federal judge can rule on its legality.

In their statement, the Department of Homeland Security noted that “upon issuance of the court order . . . U.S. Customs and Border Protection (CBP) immediately began taking steps to comply with the orders. Concurrently, the Department of Homeland Security continues to work with our partners in the Departments of Justice and State to implement President Trump’s executive order on protecting the nation from foreign terrorist entry into the United States. We are committed to ensuring that all individuals affected by the executive orders, including those affected by the court orders, are being provided all rights afforded under the law.  We are also working closely with airline partners to prevent travelers who would not be granted entry under the executive orders from boarding international flights to the U.S. Therefore, we do not anticipate that further individuals traveling by air to the United States will be affected.”

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Yesterday, January 27, 2017, President Donald Trump signed and handed down the controversial executive order, “Protecting the Nation from Terrorist Attacks by Foreign Nationals” on immigration to protect the nation from terrorist attacks by foreign nationals. Among its main provisions the order suspends IMMIGRANT AND NON-IMMIGRANT entry of foreign nationals from countries of “particular concern” including Syria, Iraq, Iran, Libya, Somalia, Sudan, and Yemen for 90 days, indefinitely suspends Syrian refugees from entering the United States until the U.S. refugee admissions program has been overhauled, and terminates the visa waiver interview process. The temporary ban will affect all non-U.S. Citizens from Syria, Iraq, Iran, Libya, Somalia, Sudan, and Yemen including green card holders and valid U.S. visa holders. Foreign nationals of these countries will not be allowed to return to the United States for a period of 90 days, after temporary foreign travel, even if they are green card holders or visa holders. For this reason, if you are a foreign national from one of these countries, you should not engage in temporary foreign travel until the temporary ban has been lifted. Visa and green card holders already in the United States will be allowed to remain without problems.

An exemption has been drawn for immigrants and legal permanent residents whose entry is in the U.S. national interest, however it is not yet clear how that exemption will be applied.

Below is a summary of the main provisions of the order per the OFFICIAL signed copy.

To read the complete version please click here.

  1. Suspension of Issuance of Visas and Other Immigration Benefits to Nationals of Countries of Particular Concern
  • The immigrant and nonimmigrant entry into the United States of aliens from countries designated (including Syria, Iraq, Iran, Libra, Somalia, Sudan, and Yemen) is suspended for 90 days from the date of the order January 27, 2017 (excludes foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, and C-2 visas for travel to the United Nations). This means that if you are a citizen of a country of “particular concern” as outlined above, you will NOT be allowed to re-enter the United States, after temporary foreign travel, until the ban has been lifted, even if you are a legal permanent resident (immigrant) or holder of a valid visa. If you are a foreign national of one of the above countries and you are an immigrant (green card holder) or non-immigrant (valid visa holder), you must NOT travel internationally. Otherwise, you will risk being denied re-entry.
  • The Secretary of State and Homeland Security may submit to the President the names of additional countries who pose a security risk and are recommended for suspension.
  • The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, must immediately conduct a review to determine the information needed from any country for adjudication of any visa, admission, or other benefit under the INA adequate to confirm the identity of the individual seeking the benefit and ensure that they are not a security or public-safety threat to the United States.

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