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Employment-based immigration and travel may continue as before, but situation still fluid
Foreign national employees impacted by President Donald Trump's immigration ban can again be admitted to the United States after a federal district court in Washington state issued a temporary restraining order Feb. 3 prohibiting enforcement of the president's Jan. 27 executive order suspending travel from certain countries.
Judge James Robart of the U.S. District Court in Seattle temporarily banned the administration from enforcing the 90-day suspension of entry into the United States of nationals from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen.
The temporary restraining order took effect immediately and is in effect nationwide.
The 9th U.S. Circuit Court of Appeals on Feb. 5 denied the administration's request that the judge's decision be overturned and the executive order reinstated until more arguments are filed this week. The appellate court, based in San Francisco, intends to make its ultimate ruling on the judge's stay later this week, sending the case to the U.S. Supreme Court.
Proceed with Caution
Trump's executive order had previously left HR professionals scrambling to figure out which employees may be affected and how to deal with business disruptions.
[SHRM members-only toolkit:
Obtaining U.S. Employment Visas]
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That uncertainty is not alleviated, even with the ban halted. "Employers should make sure employees from countries affected by the executive order know that this is a volatile situation that could change again quickly," said Rebecca Peters, director of government affairs at the Council for Global Immigration, a nonprofit trade association committed to advancing high-skilled employment-based immigration and an affiliate of the Society for Human Resource Management. "The status quo has temporarily been restored for travelers from the countries affected by the executive order, but those travelers should proceed with caution. If employees from those countries travel now, there is a chance they will be stuck outside the United States should the temporary restraining order be stayed, as the White House is requesting."
In the meantime, government agencies are prohibited from enforcing the immigration ban. Customs and Border Protection (CBP) agents must treat admissions of foreign nationals with valid visas or green cards as they would have before the order was issued, said John F. Quill, senior counsel in the immigration group in the Boston office of Seyfarth Shaw. "Please note, these individuals still may face lengthy questioning and potential delays when being inspected by CBP for admission," he said.
Airlines have been instructed that foreign nationals with valid visas or green cards should be allowed to board flights to the United States and the Department of State announced that it has reversed its previous revocation of visas from foreign nationals from the impacted countries.
Even before Judge Robart's restraining order was issued, crucial aspects of the executive order were being modified. The president's order was initially accompanied by a lot of confusion over whether it pertained to lawful permanent residents traveling outside of the U.S., and its impact on immigration benefits processing.
On Feb. 1, the White House issued a guidance stating that green card holders were no longer subject to the executive order and did not need waivers. Also, dual nationals holding passports from a third country as well as from one of the affected countries would be allowed to enter the U.S. using their other passport.
U.S. Citizenship and Immigration Services announced Feb. 2 that it would continue to process visa applications for individuals from the seven affected countries, but would defer final decisions until the president's order was lifted. The agency noted that the portion of the executive order dealing with visas and immigration benefits for individuals from the listed countries "does not affect applications and petitions by lawful permanent residents outside the United States, or applications and petitions for individuals outside the United States whose approval does not directly confer travel authorization."
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