Trump Immigration Order: How It Does (and Doesn’t) Impact Global Corporate Mobility

by Kent O'Neil | Orig. pub. 2/2/17 by Pro-Link GLOBAL

On January 27, U.S. President Donald Trump signed the Executive Order “Protecting the Nation From Foreign Terrorist Entry Into the United States.” The impacts of this order were immediately felt by affected foreign nationals and their families caught in its grip with hundreds of individuals either detained at airports in the U.S. or before boarding their flights overseas, and the reverberations rippled throughout the U.S. and around the world. Immigration lawyers immediately leapt to the aid of affected foreign nationals, while thousands of empathetic Americans took to the streets in protest. However, most media coverage provided little clarity in the midst of the understandable confusion and turmoil surrounding the controversial move.

Reasonable minds certainly can (and should) debate the moral, ethical, political, diplomatic, and economic ramifications of this controversial Executive Order. There are many. However, for the purposes of this blog, Pro-Link GLOBAL is setting those aside for the moment (though we may weigh-in on that debate in the coming weeks). With some of the initial smoke now clearing, Pro-Link GLOBAL wants to take the opportunity to answer some key questions and provide our clients with some much-needed clarity and analysis on the Executive Order, focusing on the impact to international business and global corporate mobility.

What Does the Executive Order Say… and Not Say?

The difficulty in assessing exactly what actions the President’s Executive Order brings forth comes from the inevitable confusion between his vague and often controversial statements of broad policy and the exact language of the Order. Below we attempt to separate the two. 

What the Order Doesn’t Say

Much has been made of the President’s seemingly anti-Muslim and anti-immigrant rhetoric and the broad use of his “America First” mantra in describing his approach to national interests. However, the actual text of the present Executive Order is, in a strictly legal sense, much less controversial. Contrary to what some media outlets seem to suggest, the text of the Executive Order does not contain the words “Muslim,” “Islam,” “Christian,” or “Christianity.” The word “religion,” however, does appear three times in the Order: once under the Purpose section in a statement that the U.S. should not admit individuals who engage in “the persecution of those who practice religions different from their own,” and twice in the section on the realignment of the refugee program where the Secretary of State is directed to “prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion.”

Likewise, the nations of Iran, Iraq, Libya Somalia, Sudan, and Yemen are not named in the Order. Rather, those nations are incorporated by reference to the Department of State’s (DOS) long-established list of State Sponsors of Terrorism and the Department of Homeland Security’s (DHS) Countries of Particular Concern list, also published prior to the Order. The DHS list was created last year under the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 (the “2015 Act”), signed by President Obama in December 2015. The 2015 Act removed the citizens of certain countries from the Visa Waiver Program: Iraq and Syria named specifically in the Act, state sponsors of terrorism (Iran, Sudan, and Syria), and any other country that the DHS designates to be a “country of concern,” then determined to be Iran, Iraq, Sudan, Syria, Libya, Somalia, and Yemen.

With that said, what does the Order say? It covers four pages of text and the language in places is unclear, but the significant aspects with immediate impact that can be determined with some certainty include the following.

What the Order Does Say

Visa Ban for Seven Nations

For a period of 90 days, the admission to the U.S. of all foreign nationals from the countries on the State Sponsor of Terrorism and Country of Concern lists – Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen – is generally suspended. However, the DOS and the DHS are authorized to make exceptions and issue visas on a case-by-case basis in the national interest, even where the applicant is otherwise blocked. In addition, during the ban, authorities are tasked with establishing more stringent screening procedures for U.S. visa applicants.

Realignment of Refugee Program

• For a period of 120 days, the U.S. Refugee Admissions Program (USRAP) is suspended for foreign nationals from all countries. Authorities are to then review and revise procedures for screening refugees and consult with the states on placement or resettlement of refugees.
• The maximum number of refugee admissions is capped at 50,000 for 2017, down significantly from the 110,000 cap set by the Obama administration.
• The DOS and DHS are authorized to admit refugees to the U.S. on a case-by-case basis only where the admission of such refugees is (1) in the national interest, (2) does not pose a risk to the security or welfare of the United States, and (3) the person is a religious minority in his or her country of nationality facing religious persecution, or admitting the person would enable the United States to conform its conduct to an existing international agreement.

Future Process and Enforcement Changes

• The Visa Interview Waiver Program is suspended indefinitely. All applicants for nonimmigrant visas will be required to undergo an in-person interview, regardless of their country of residence or nationality.
• The DHS is directed to expedite implementation of a biometric entry-exit tracking system for all foreign nationals entering the U.S.
• The DOS is directed to review all visa reciprocity agreements with foreign nations to ensure that U.S. nationals are being given reciprocity regarding visa validity and fees and to adjust U.S. regulations to match the reciprocal agreements.

Does the Order Apply to U.S. Permanent Residents or Dual Citizens?

In the early hours after the Order was issued, the status of individuals from listed countries who held either permanent residence status or dual citizenship with an affected nation was perhaps the most perplexing question. Unartful drafting and implementation of the Order made these answers unclear and directly affected individuals and families who had lived in the U.S. – sometimes for years – but who were abroad at the time of the Order’s execution.

However, since the Order was first implemented, the DHS and the Customs and Border Protection (CBP) have issued clarifying statements that:

• All foreign nationals from the affected countries with legal permanent resident status in the U.S. are permitted to enter the U.S. “absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare.”
• Dual citizens of the United States and one of the affected nations are clearly exempt from the Order.

The question of the status of non-U.S. dual citizens of one unaffected nation and one affected nation is still somewhat less clear. The confusion primarily arises from the Order’s use of the word “from” in naming the affected individuals. Reportedly, the U.S. and close allies such as the United Kingdom, Canada, Australia, France, and Germany have made assurances that permit dual citizens of these countries and an affected nation to still be granted entry into the U.S. (unless they are traveling directly from an affected nation). At the time of this writing, it remains unclear whether the U.S. will expressly make similar blanket exemptions for the similarly situated citizens of other nations, but the CBP has issued guidance via its website that “travelers are being treated according to the travel document they present.” So presumably dual citizen travelers entering the U.S. using their non-affected country passport should be admitted, despite their second citizenship in one of the affected countries.

Will the Order Be Invalidated by the Courts?

No, at least not in its entirety. Multiple lawsuits have been filed by lawyers on behalf of affected foreign nationals, the American Civil Liberties Union (ACLU), and several State Attorneys General seeking redress ranging from relief for individuals already in the U.S. to complete invalidation of the Order as unconstitutional. A seven-day reprieve has already been granted by the courts for foreign nationals detained in the U.S. but holding permanent residence or valid visa status. Reports are that those individuals have now been released from detention and allowed to enter the country.

Total invalidation of the Order is unlikely. While the advisability of the action is debatable, the Order is an exercise of the President’s discretion to act in matters of national security, and that authority is further confirmed by the Immigration and Nationality Act. Also, while the present Order is far broader in scope and more overtly controversial, other Presidents have previously instituted similar temporary suspensions and bans at numerous times in the past aimed at particular countries, including a temporary suspension of visa processing for Iraqis under President Obama and an Executive Order by President Carter banning Iranian citizens. Challenges to the Order as being an unconstitutional “Muslim ban” will also likely be ineffective as the language is, legally speaking, religion-neutral and only applies to a relatively small percentage of Muslim-majority nations. Pro-Link GLOBAL continues to closely monitor the court actions which continue as of this writing.

What is the Immediate Impact on U.S. Companies Doing Business in the Middle East?

The impact on U.S. companies doing business in the Middle East and allied/sympathetic nations is going to be the last outcome to fully evolve from the Order, but assuredly there will be impact. Those consequences, however, will depend on how the affected nations react to the U.S. action, and to what extent their neighbors and allies in the region join with them in their responses to the U.S.

As of the time of this writing, the primary international fall-out has thus far been confined to the seven affected nations. The Iraqi Parliament already voted Monday in favor of a resolution calling for the Prime Minister to respond in kind if the U.S. action is not reversed. Iran’s Ministry of Foreign Affairs has released a similar statement condemning the action and vowing reciprocal “legal, consular, and political action.” However, the Iranian Foreign Minister was quick to note that such action would only be taken “while respecting the American people and differentiating between them and the hostile policies of the U.S. Government” and that it would not be retroactive to valid visas held by U.S. nationals. The governments of Sudan and Yemen similarly issued statements blasting the action, but have not hinted at reciprocal action as yet. There has been no apparent formal response from the governments of Syria, Somalia, and Libya at the time of this writing.

Throughout the broader Muslim world, the response has understandably been significant as Muslims generally have taken offense to the action and the corresponding public debate of a “Muslim ban.” Muslims throughout the world have voiced objection, primarily thus far through peaceful demonstration. The 57-nation Organization of Islamic Cooperation issued a statement expressing “grave concern” and urging the U.S. not to depart from its moral obligation to provide leadership and hope in the current world of unrest.

As President Trump appears stalwart in his defense of his executive action, it is unlikely that the U.S. will bow to any diplomatic demands to reverse the Order. Therefore, some form of a U.S. citizen ban or increased visa challenges in Iraq and Iran is likely in the coming weeks. Similar actions may then follow in Sudan, Syria, Somalia, and Libya, but the instability of those governments may delay a formal response.

Practically speaking, the global impact will be greatest for the U.S. companies doing business in those nations listed in the Order. U.S. State Department travel warnings are in place for U.S. nationals in those countries, and travel is already ill-advised. However, for the clear majority of U.S. companies doing business in the Middle East but not in the affected countries, entry bans for U.S. citizens in the currently affected nations will have negligible impact.

However, the question remains to what extent there will be spill-over effects in the surrounding Muslim nations where U.S. companies do more significant business: The United Arab Emirates (UAE), Saudi Arabia, Kuwait, Oman, Qatar, and Egypt. The two largest nations in terms of U.S.-Middle East commerce are the UAE and Saudi Arabia. These countries share a common religion with four of the affected nations who are also largely Sunni Muslim: Syria, Sudan, Somalia, and Libya. On the other hand, Iraq and Iran are majority Shia Muslim, somewhat distancing them from Saudi Arabia and the UAE. With nations like the UAE and Saudi Arabia maintaining strong economic ties with the U.S. and its allies, and far less with the seven economically-struggling nations subject to the Order, it is doubtful they will join in any reciprocal action against the U.S.

Bear in mind though, the dynamic in the Middle East is complex and constantly changing. Therefore, U.S. companies would be wise to remain in close communication with their global mobility advisors and stay up-to-date on State Department travel warnings when considering assignments for U.S. national employees in the Middle East. Pro-Link GLOBAL will continue to monitor the situation in the Middle East for any official actions on immigration. However, for the time being, we believe the greatest risk for U.S. nationals in the Middle East will be of the more unquantifiable nature – the extent to which the current action engenders anti-American sentiment among the population of the region which may then negatively impact U.S. business interests and the personal safety of their employees.

Bottom Line… How Does the Order Affect You?

For U.S. and multinational companies sending U.S. national employees to destinations in the Middle East, the world of global corporate immigration just got even more complicated. It is anticipated that Iran and Iraq will limit travel for U.S. foreign employees and business people for a time, requiring companies to send non-U.S. nationals to complete necessary assignments there. Similar actions may follow in Sudan, Syria, Yemen, Somalia, and Libya. While U.S. nationals may not experience outright immigration bans in the rest of the Middle East, doing business in the region just became much more difficult as the already diminishing respect for the U.S. has surely taken a precipitous drop.

For citizens of one of the seven listed countries who are not permanent residents of the United States, the U.S. will remain off-limits for immigration, employment, business, tourism, study, and family visits for the next 90 days. Even employees of a U.S.-based company holding valid visas may be affected: if they were traveling outside of the U.S. when the Order was handed down, they may have difficulty returning to work in the U.S. for the next three months absent an extraordinary exemption being made. For further analysis or recommended actions for any U.S. companies with foreign employees from the affected nations, please reach out to your dedicated U.S. immigration provider.

Beyond the business world, however, those who will be most affected by the Order are the refugees from the listed countries hoping for sanctuary and a fresh start in the U.S. For this group, the Order is devastating as the United States has now closed its doors to all refugees, regardless of the situation in their home country, for the next four months. For refugees from Syria, the door may remain closed for much longer. While the Executive Order leaves open the possibility for discretionary case-by-case exemptions, the current tenor of the administration indicates that those cases will be few.

The developments of this past week in the immigration policy of the U.S. only serves to remind us that nations and companies do not operate in a vacuum and that every action has ripple effects in this increasingly global and increasingly complex world. Pro-Link GLOBAL will continue to monitor the political, diplomatic, and business climate in the Middle East, particularly for changes in corporate mobility law which may present challenges for our international corporate clients. Please continue reading our future alerts and blogs as we report on important changes.

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