Immigration Restrictions Update

Immigration Restrictions Update

As detailed in the excerpt below from ERC’s Government Affairs, there are ongoing developments that will potentially impact employee global mobility. On 1 June 2017, the US Department of Justice petitioned the US Supreme Court to hear arguments on the President’s executive order(s) to implement restrictions on immigration into the US and the subsequent blocking of the order by the lower courts.

Cara Skourtis, NuCompass' Vice President, Knowledge & Experience, said, "In addition to the legal considerations, the issue of the use of social media (i.e., Presidential use of Twitter), and whether the content is material to the case will be a new and interesting aspect of the procedures. This continues to be a developing situation with important implications for global mobility. We will publish additional updates as they become available."

On June 1, the U.S. Department of Justice petitioned the U.S. Supreme Court to allow the Trump Administration to enforce its executive order to ban entry of nationals from six countries while the Court determines the constitutionality of the ban.  The request follows a ruling on May 25 by the 4th Circuit Court of Appeals which upheld a lower court ruling blocking the ban.  For the first time since a ruling has been made on one of the executive orders on a travel ban, the U.S. Supreme Court has a full complement of justices, with the confirmation of Justice Neil Gorsuch who joined the Court on April 10.

The 4th Circuit Court of Appeals ruled 10 to 4 in favor of the lower court ruling based on its opinion that remarks by President Trump led to the insinuation the ban was targeted at Muslims.  In its petition to the U.S. Supreme Court, the Department of Justice argued against the lower courts’ rulings citing (1) The executive order represents the president’s own considered judgment about the needs of national security, for which the Constitution makes him uniquely and personally responsible; (2) the order is not a “Muslim ban” or indeed a “ban” of any kind, merely “a temporary 90-day pause (subject to individualized waivers) on the entry of certain foreign nationals from six countries”; (3) this order—unlike the first order hastily issued at the end of Trump’s first week in office—makes no reference to religion and is based purely on national security grounds; (4) the second order—again unlike the first—was entered “based on the recommendation of the Secretary of Homeland Security, in consultation with the Secretary of State and Director of National Intelligence” and after review by the affected agencies; (5) the president’s previous statements about a “Muslim ban” were “campaign-trail statements by a political candidate” that he has not repeated since becoming president and at any rate (6) presidential statements of any kind shouldn’t be considered—only the words of the order themselves.

There are some discussions now, however, that the Department of Justice’s arguments may be complicated by tweets sent from President Trump on Sunday, June 4 and Monday, June 5 following the now-affirmed terrorist action in London. The tweets include the suggestion that the Justice Department “should have stayed with the original Travel Ban, not the watered down, politically correct version they submitted to S.C.”

In coming days, the Court will likely ask for the respective parties to present their case on why the Court should grant the immediate request and add the case to its docket.

Background on Executive Order
On March 6, President Trump signed a new order suspending certain nationals of six countries from entering the U.S.  The order reinstitutes a temporary 90-day ban from entering the U.S. those foreign nationals from Iran, Libya, Somalia, Sudan, Syria and Yemen and a 120-day suspension for the Refugee Admission Program on refugees from those countries. Iraq is no longer on the list of countries subject to the suspension. 

The executive order is a revised version of the initial executive order (EO 13769) issued on January 27.  The revised order signed on March 9 includes exemptions and clarifications to the suspension that were not included in the initial order.  The order would apply to foreign nationals who did not have a valid visa when the first executive order was issued and do not have a valid visa and are outside of the U.S. on the effective date of the revised order.  A waiver would be granted to those foreign nationals who meet several conditions, including but not limited to being a lawful permanent resident of the U.S., a dual national traveling on a passport of a non-affected country, possessing a green card and seeking to reenter the U.S. or entering the U.S. for business purposes which would be significantly hampered by being denied entry.

On March 9, the Trump Administration filed a motion with the U.S. Court of Appeals for the 9th Circuit to dismiss its appeal in the case of the initial executive order suspending foreign nationals from seven countries.

A federal judge in Maryland had temporarily blocked the revised executive order denying U.S. visas for certain nationals of six countries.  The Department of Justice appealed the ruling to the Federal Court of Appeals for the 4th District in Richmond, Virginia.  On May 8, the appeals court heard oral arguments in the case and then the court issued its ruling on May 25.  The Federal Court of Appeals for the 9th Circuit is still considering an appeal by the Department of Justice to a ruling in Hawaii that also suspended the executive order from being implemented.

How this will impact mobility:  The ability to move an employee around the globe is the foundation of our industry.  Actions that suspend or prevent that movement have the ability to undermine a key tool for employers to ensure they have the appropriate employees in positions vital to their operations.  Other nations could take similar actions in response to U.S. immigration policies and make it more difficult the entry of U.S. citizens from entering their countries.

The full briefing published by Worldwide ERC, dated 6 June 2017, can be found here: