Trump Blinks and Signs Revised Executive Order; States React Immediately

On March 6 President Trump signed a second Executive Order revoking his January Order and replacing it with Executive Order (“March Order”) effective March 16, 2017 that is intended to overcome court challenge. The March Order suspends for 90 days entry into the U.S. of nationals of six countries, but carves out limited exceptions for certain categories of affected aliens. After issuing the March Order, the Justice Department immediately asked the federal court in Seattle to halt Washington’s and Minnesota’s legal challenge from proceeding against the January Order and notified the Court notice that the Government plans instead to enforce the provisions of the March Order.  However, for the moment the Seattle lawsuit remains pending.

Under the March Order, entry by nationals of six countries -Iran, Libya, Somalia, Sudan, Syria and Yemen- is suspended through June 14, 2017. The suspension of entry into the U.S. will apply only to foreign nationals from the six countries who 1) are outside the U.S. as of March 16, 2017, and 2) did not hold a valid visa as of 5 p.m. EST on January 27, 2017 and 3) do not have a valid visa as of March 16, 2017. The suspension of entry into the U.S. will not apply to U.S. permanent residents, any foreign national who is admitted to or paroled into the U.S. on or after March 16, 2017, any foreign national who has a document other than a visa valid on March 16, 2017 that permits the individual to travel in the U.S., any dual national of one of the six countries if the individual is traveling using a passport from the non-designated country, any foreign national traveling on a diplomatic visa, NATO visa, C-2 visa for travel to the U.N. or a G-1, 2, 3 or 4 visa, any foreign national granted asylum, and any refugee already permitted to be in the U.S. No immigrant or nonimmigrant visas issued before March 16, 2017 is being revoked by the March Order and any individual whose visa was revoked as a result of the January Order is entitled to a travel document permitting travel to and entry into the U.S.

Although the March Order does not list Iraq as a banned country, decisions about issuance of visas or granting entry to any Iraqi national will be subject to additional scrutiny to determine if the alien has connections to ISIS or other terrorist organizations, or otherwise poses a threat to national security or public safety.

The March Order also suspends all refugee travel into the U.S. under USRAP and suspends decisions on all refugee status applications through July 16, 2017. The January Order banned all Syrian refugees’ admission into the U.S. indefinitely. The Secretaries of State and Homeland Security retain the ability to jointly determine a refugee’s admission into the U.S. on a case-by-case basis so long as admission is in the national interest and poses no threat to national security and welfare. Finally, for fiscal year 2017 entry by refugees in excess of 50,000 is suspended until the President determines additional entries are in the country’s interest.

The first state to challenge the March Order was Hawaii which sued in Honolulu federal court claiming that the March Order results in an unconstitutional establishment of religion and inflicts immediate harm on Hawaii’s economy, education and tourism. U.S. District Judge Derrick Watson will hear Hawaii’s request for a temporary restraining order on March 15. New York’s Attorney General announced that New York will join Washington and Minnesota in the pending federal case in Seattle. Other states are expected to follow New York’s and Hawaii’s example.

If you have any questions or would like to discuss how the March Executive Order affects your employees and your business, please contact Patrick W. McGovern, Esq., Partner in the Firm’s Immigration Law Practice at 973-535-7129 or at pmcgovern@nullgenovaburns.com.

USCIS Issues Revised I-9 Employment Verification Form

Earlier this month the U.S. Citizenship and Immigration Services (USCIS) released a revised I-9 Employment Eligibility Verification Form. Since May 1986 all U.S. employers have been required to complete and maintain in their records an I-9 form to verify the identity and authorization of each new employee to work in the U.S. Once a new hire has completed the I-9, the employer must retain a copy of the I-9 form for three years from the date of hire, or one year from the date of termination, whichever is longer. (For example, an employer who terminates an employee after five years of employment must maintain that employee’s I-9 form for one year from the date of termination.) Employers that fail to complete the I-9 form or do not properly retain the I-9 form are subject to monetary penalties up to $1,100 per I-9, and criminal penalties may be imposed in certain cases.

The new I-9 form introduces the following changes:

  • Requires employees who are aliens authorized to work under an I-94 card to state the foreign national passport number and country of issuance;
  • Provides clarification under List C of acceptable documents that social security cards with restrictions, such as “Not Valid For Employment,” “Valid for Work Only with INS Authorization,” or “Valid for Work Only with DHS Authorization” are not acceptable List C documents;
  • The List of Acceptable Documents now references Section 2 of the I-9 employer instructions for more information about acceptable receipts.
  • Clarifies that List B identity documents do not require reverification;
  • Adds a field for the employer representative’s name; and
  • Provides optional fields for the employee’s email address and telephone number.

While the USCIS suggests that employers begin using the new I-9 form immediately, employers may continue to use an approved 2009 version of the form through May 6, 2013. Effective May 7, 2013, all employers must use the new I-9 form for new hires.

For more information on I-9 compliance, the e-verify program or other immigration law compliance issues, please contact Patrick W. McGovern at pmcgovern@nullgenovaburns.com or Rebecca Fink at rfink@nullgenovaburns.com in our Immigration Law Practice Group.