The Three US Immigration Executive Orders
On January 26 and January 27, 2017, the new US President issued three executive orders in respect of immigration matters that have a wide reach and are being felt around the world, including the Order for a travel ban of seven predominantly Muslim countries.
But Surprising, it is not the travel ban that will likely have the most impact on Americans – it is the Order for public safety of the Interior which targets average Americans and American businesses across the country for their role in US immigration.
Here is a summary of all three:
1. Order Suspending Foreign Nationals from 7 Countries
The most news worthy but probably the least impactful Executive Order is the so-called travel ban executed on January 27, 2017 and entitled “Protecting the Nation From Foreign Terrorist Entry Into the United States“. It is the least impactful because it is time-limited – it has an expiry date. The others do not.
This Executive Order immediately bans for 90 days, the entry to the US of foreign nationals from certain countries for immigration (green cards, permanent residence) and non-immigration (visas) entry.
The persons who are banned are those who were the subject of heightened due diligence and screening under HR158 and therefore they are:
With respect to Iran, Iraq, Syria and Sudan, if those citizens have dual nationality, the Order still takes into account the country of origin, or citizenship of those countries under the laws of those countries. There is no relief for persons en route to the US with valid immigration documentation and it applies to persons holding Green Cards or visas to enter the US. The only exception is a visa issued for diplomatic purposes.
The Order also Immediately requires an assessment of the information needed to determine immigration decisions from other countries, together with a list of countries that do not provide adequate information to the US. Once that assessment and review is complete, the US will demand that so-called recalcitrant countries provide the information the US seeks on travel security. Countries that are non-cooperative will be included on a list and its foreign nationals will be barred from entry to the US.
The Order orders the implementation of uniform screening standards for all immigration programs to the US to look for fraud and accelerates the completion of the biometric ID system for all travelers to the US.
The Order also suspends for 120 days, the US refugee admission program to assess its strength and suspends the entry of refugees to the US for now, from Syria. When the suspension is lifted, the US will prioritize the admission of refugees who are persecuted on the basis of religion. On a case-by-case basis, refugees may be admitted to the US if the person is from a religious minority facing persecution, the person is in transit or denial would breach an international agreement.
The Order also suspends immediately the Visa Interview Waiver Program. The Program allowed foreign nationals under J, O and P visas who were seeking renewals of those same visas to avoid an interview to renew their visas. In terms of visas, J is for exchange students; O is for persons of extraordinary ability; and P is for internationally recognized athletes, artists and entertainers. Now all non-immigration visa applicants will have to undergo an interview.
Finally, the Order requires the Secretary of State to review all non-immigrant visa reciprocity agreements, including with Canada, to ensure there is reciprocity and if not, to amend each non-immigrant visa agreement in such a way as to match how Americans are treated by that country.
2. Public Safety Executive Order – the Most Powerful Order
The next Executive Order entitled “Enhancing Public Safety in the Interior of the United States“, is the most powerful. It is powerful because its effects will be felt all over the world and all over the US by many Americans. The purpose of this Order is to maintain the integrity of the US visa process to ensure that visas are obtained to enter the US for the correct purpose (e.g., business), their terms are obeyed (e.g., conditions of work and departure upon expiry), and foreign nationals are removed when warranted.
This Executive Order authorizes the hiring of 10,000 immigration removal officers whose job will be to remove illegal foreign nationals from the US. It also empowers municipal and state police with federal immigration powers for the purposes of arrest, detention and investigation.
It disentitles cities from federal grants if they deliberately harbor (refuse to detain), certain foreign nationals who are the subject of detention orders and requires the weekly reporting to the public of cities that harbor foreign nationals who are the subject of detention orders, together with a list of the crimes which the foreign nationals are wanted for. This is like the sexual offender lists that is legal in the US only more tame and less invasive.
The Order sets the following policy to prioritize the removal of foreign nationals, targeting:
- Those who admitted committing or who were convicted of a crime of moral turpitude or violated a US law, or foreign law related to drugs, or who enter the US for prostitution or to procure a prostitute;
- Those who attempt to enter to spy, illegally export tech or to oppose or overthrow the government by force, violence or other unlawful means;
- A terrorist, or a person inciting terrorism;
- Those who made a misrepresentation on a US immigration form;
- Those who committed violent crimes or domestic violence; and
- Generally those who committed a criminal offence, refused to leave the US after being ordered to do so, pose a risk to public safety, or made a misrepresentation to any government agency on any matter.
The Order authorizes by regulation or guidance, the collection of penalties and fines against foreign nationals who are unlawfully in the US or under a false pretext (working without a visa).
It also authorizes by regulation or guidance, penalties and fines against Americans and American companies who have “facilitated” the presence in the US of foreign nationals who were not entitled to be in the US.
It is not clear what “facilitate” the presence of foreign nationals in the US means. Examples could include a modeling agency or a tech company that employs a foreign national illegally in the country on the basis of a misrepresentation, or who is working without authorization, or a person providing shelter or a home to a foreign national illegally in the country. It may even apply broadly to providing any service to a foreign national if it facilitates keeping them in the country. On its face, it may be so broad as to include financial institutions providing banking services.
As it relates to Canada, and in particular, Canadian financial institutions, the Order requires that US executive departments and federal agencies ensure that their privacy policies expressly exclude foreign nationals of the US (e.g., Canadians and any other persons who are not US citizens or permanent residents) from the protections of the US Privacy Act regarding personally identifiable information. What this means is that all non-US persons will, as of the date of the Order, have no federal US privacy law protection and although it does not apply to the private sector, it means that the private sector cannot rely upon the Privacy Act as a shield against federal information access or requests.
3. The Mexico Wall Executive Order
The final Executive Order addresses the Wall with Mexico and is entitled the “Border Security and Immigration Enforcement Improvements”.
The material terms of that Order:
- Authorize the hiring of 5,000 border patrol agents for both borders;
- Require the incarceration of foreign nationals apprehended for violations of US immigration law until the outcome of their hearing or removal from the US;
- Authorize the construction of detention centers near Mexico; and
- Authorize the planing and funding of the Wall with Mexico.
It is the Public Safety Executive Order that signifies the most significant change to US immigration policy, even though it has received next to no attention in the world media compared to the travel ban Order.
That is because all of the immigration resources are directed at enforcing that Order, including 10,000 new immigration removal officers whose jobs are to deport and remove foreign nationals who are in the US illegally or pursuant to a misrepresentation. Vast numbers of foreign nationals will be removed from the US who are employed in the US, have companies, jobs and families there and who have an illegal status.
It also has provisions to authorize by regulation or guidance, the issuing of fines and penalties on foreigners, Americans and American businesses for facilitating a foreign national’s presence in the US – a term that is uncertain and may mean that a wide-range of American companies and individuals will be under the microscope in respect of their immigration hiring practices and may face uncertain exposure to liability in respect thereof.