How Does President Trump's Executive Order "Protecting the Nation from Foreign Terrorist Entry Into the United States" Impact Your Employees?

As you probably already know, President Trump issued an executive order on Friday Jan. 27, 2017 titled, “Protecting the Nation from Foreign Terrorist Entry Into the United States.” This order can potentially have far reaching impact on your employees if they are citizens of the seven countries identified in it.

As your trusted business partner, TriNet stands ready to assist you and your employees interpret and understand the consequences of this order. Here are the facts and what they mean for you and your employees:

Who does this order impact and how?
Under the order, citizens of Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen (“Affected Nations”) are denied entry into the United States for 90 days (until April 26, 2017). This includes lawful visa holders, lawful permanent residents (also called LPRs or green card holders), dual nationals (also called dual citizens) and multi-visa holders. Not only are citizens of Affected Nations unable to enter the United States, but the United States Embassies and Consulates abroad are not scheduling appointments or processing visa applications or renewals for them. 
 
What is the legal status of your employee(s)?
It would be helpful to know the exact legal status of your employee(s) to better understand if they may be impacted.

• Immigrant: A lawful permanent resident, which is another name for a green card holder. A green card holder is also referred to as a ‘permanent resident alien.'
• Nonimmigrant: Someone with a temporary visa, such as an H-1B or L1.
• Citizen: Someone who was born in the United States, or someone who has been through the naturalization process. A good way to tell the difference is whether your staff member is entitled to hold a United States passport; not whether they have one, but whether they are entitled to one. If the answer is no, they are not a citizen of the United States. You also will have considered this issue when going through the I9 process with your employees.

Impact on green card holders
On Sunday Jan. 29, Homeland Security issued a statement clarifying the status of a green card holder who is a citizen of an Affected Nation, saying "in applying the provisions of the president’s executive order, I hereby deem the entry of lawful permanent residents to be in the national interest” and “lawful permanent resident status will be a dispositive factor in our case-by-case determinations."

This seems to indicate that while green card holders will be subject to additional screening, they will most likely be allowed back in the country after going through the additional check. However, it is not clear what the additional screening might be.

Impact on dual citizens
Initially, the guidance provided by the State Department was that someone who holds dual citizenship from one of the Affected Nations would be barred from entering the United States. This guidance meant, for example, that an Iranian national who also holds an Australian passport would be prohibited from entering the United States.

The State Department later stated that the order "should not affect dual-national Americans at all," meaning a United States citizen who also holds citizenship from one of the Affected Nations would be allowed entry, provided they met all other criteria for admission based on their second nationality.

However, many anecdotal reports indicate this preferred approach from the State Department is being implemented inconsistently, and dual citizens are targeted for additional screening. In addition, the order does not apply to individuals who hold U.S. citizenship along with citizenship of another country, though a U.S. Customs and Border Protection (CBP) agent can presumably question such a person based on his or her discretion, and will likely do so if the individual’s travel over the past few years has included trips to the Affected Nations. This is not necessarily a different scenario to the situation that existed before the order was effected.

U.S. CBP has also subsequently clarified that dual citizens travelling on passports not issued by one of the Affected Nations will be admitted into the United States. For example, if someone holds dual citizenship in Australia and Iran, but travels using their Australian passport, they should be granted admission, but may be subject to additional screening.

Will citizens of other nations be impacted?
The administration has said it will be "very aggressive" as it weighs how many more countries to add to the current list of Affected Nations. TriNet is monitoring the situation and will reach out to clients as appropriate.

Visa holders, green card holders, visa applications and renewals and green card applications
It is not clear whether the order also encompasses the activities of United States Citizenship and Immigration Services (USCIS) who are responsible for processing visa applications, green card applications and other immigration matters. Reports from USCIS indicate that applications for citizens of the Affected Nations have been placed on indefinite hold, however these reports have not been confirmed by the president's administration.

Persons inside the United States who are citizens of an Affected Nation on non-immigrant and immigrant visas should not leave the United States without speaking with an immigration attorney, as they may not be able to re-enter the United States even if their visa allows multiple entries. Please contact TriNet if you need help locating assistance.

The ambiguity resulting from the order has led many companies and institutions to caution anyone with citizenship or ties to one of the Affected Nations from leaving the United States. TriNet concurs with this conclusion. If you have questions or concerns, please contact immigration@TriNet.com.

Updated Feb. 3, 2017

It has recently been

that between 60,000 and 100,000 visas held by citizens of the Affected Nations have been “provisionally revoked.” However, the meaning of “provisionally revoked” has not been clarified.  It’s possible this means visas previously issued to citizens of the Affected Nations are not valid for travel while the order is in place, but will become valid again once the order expires.  Another interpretation is that the visas have been permanently invalidated, and citizens of the Affected Nations will need to reapply and have a new visa issued after the order expires.  We expect further clarification in the coming weeks.

Updated Feb. 6, 2017
On the evening of Friday Feb. 3, a federal judge issued a temporary restraining order (TRO) which suspends enforcement of the executive order until the case brought against the order by Washington state (joined by Minnesota state) can be heard. By Saturday morning, Feb. 4, federal officials from the State Department and the Department of Homeland Security had announced they would be complying with the ruling, and airlines said they would resume boarding travelers affected by the order. In addition, the State Department says that the visas previously revoked under the order had been reinstated and that "individuals with visas that were not physically cancelled may now travel if the visa is otherwise valid."

Over the weekend, the Department of Justice filed an emergency motion for an administrative stay which would have revoked the TRO, and was denied. The Department of Justice also filed a motion for a stay pending appeal and oral arguments will be heard on Tuesday Feb. 7 at 6:00 p.m. EST.

By Monday afternoon, nine amicus curiae briefs had been filed with the court in the Washington state case in support of Washington state. These include a brief to which 97 -- mostly technology -- companies are party. The brief argues that the order substantially hinders the ability of American companies to attract talent, increases costs and makes it more difficult for American firms to compete globally, driving a significant new incentive for companies to build operations outside the U.S. Amicus briefs were also filed by a group of 15 state attorneys general and by the ACLU, amongst others. No amicus briefs have been filed in support of the order. The state of Hawaii, which had filed its own lawsuit in the District Court, has filed a motion to intervene in this Ninth Circuit Court appeal, or in the alternative to file as an amicus curiae.

The situation remains subject to change. If you are concerned, please reach out to immigration@trinet.com. 

This communication is for informational purposes only; it is not legal, tax or accounting advice; and is not an offer to sell, buy or procure insurance.

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