Immigration: Trump executive order directly affects US healthcare and all tech-related industries

Blog Post

Updated February 3, 2017

On January 27, 2017, President Donald Trump signed Executive Order "Protecting the Nation from Foreign Terrorist Entry Into the United States" related to visa issuance, screening procedures, and refugees. Among other provisions, Section 3 of the executive order, "suspends" the immigrant and nonimmigrant entry of nationals from certain designated countries for 90 days from the date of the order. To date, the seven designated countries are:

• Iran
• Iraq
• Libya
• Somalia
• Sudan
• Syria
• Yemen 

All United States embassies and consular posts overseas were instructed to immediately suspend issuance of non-immigrant and immigrant visas for nationals of designated countries. In the wake of the executive order, the Department of Homeland Security (DHS) immediately began to implement the travel ban and there have been multiple reports of physicians and researchers with valid non-immigrant visas or green cards who were not allowed to board planes as they attempted to return to the United States.

The executive order originally appeared to apply to the following categories of foreign nationals (and explicitly excluded persons who merely traveled to the designated countries):

• Immigrants, i.e. Legal Permanent Residents (LPRs) or green card holders;
• All other individuals who are "from" the designated countries, including non-immigrants (i.e. temporary visas such as H-1B, H-4, O-1, L-1, L-2, etc.) and refugees; and
• Individuals, who are dual nationals. 

However, on January 29, 2017, the DHS issued a clarification of the January 27, 2017, Executive Order "Protecting The Nation From Foreign Terrorist Entry To The United States." In the clarification, the DHS:

• Reiterated the language of the executive order, confirmed that, for the next 90 days, nearly all travelers, except United States citizens, traveling on passports from the designated countries of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen will be temporarily suspended from entry into the United States. 
• Clarified that this bar on entry does not apply to foreign nationals from the seven nations, who are LPRs with valid green cards. Citizens of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen holding a valid Form I-551 (commonly known as a green card) will be allowed to board United States bound aircraft and gain entry into the United States, subject to thorough (i.e. lengthy) national security checks, which may delay travelers who are therefore advised not to plan tight flight connections. Upon inspection at the U.S. border, the DHS will determine on a case by case basis whether entry of LPRs from these seven nations into the United States is “in the national interest” of the United States. 
• The DHS and the Department of State have the authority to issue visas to or allow entry of nationals from the seven countries on a case-by-case basis.

Then, on February 1, 2017, Counsel to the President Donald F. McGahn II issued a memorandum to the secretary of state, attorney general, and secretary of the DHS to lift the “reasonable uncertainty” and clarified that Section 3(c) and 3(e) of the executive order do not apply to LPRs. The memorandum directed the head of these agencies to immediately convey this interpretive guidance to all individuals responsible for the administration and implementation of the executive order. In light of this guidance, it is now clear that entry into the United States for LPRs from the designated countries is no longer prohibited, however, these nationals may still face additional scrutiny and questioning at inspection at the border and should therefore plan accordingly.

As evidenced by the series of news released over the past few days, the situation is fluid and may change at any time. On February 1, 2017, rumors that Afghanistan, Colombia, Egypt, Lebanon, Mali, Pakistan, the Philippines, and Venezuela were soon to be added to the list circulated, but the Department of State has since clarified that the administration has no current plan to expand the list of designated countries. The ban, therefore, still only applies to nationals from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. Researchers, IMGs, executives, and tech workers from the seven designated countries are advised not to travel abroad for at least the next 90 days or until the ban is lifted. Employers should disseminate this information to all their affected employees and warn them of the risks associated with traveling overseas. Global entry privileges of all nationals from the designated countries have been suspended until further notice.

As of now, it also appears that until additional guidance is received, USCIS agents are not allowed to take final action on any petition or application where the applicant is a citizen or national of the seven designated countries. This applies to all types of petitions and applications, such as Form I-129, Form I-765, Form I-130, Form I-90, etc. The order, however, excludes Form N-400 and Form N-600. USCIS field offices may interview applicants for adjustment of status and other benefits according to current processing guidance, and process petitions and applications for individuals from these countries up to the point of final action. Further, the U.S. Department of State National Visa Center has cancelled all visa interviews for the individuals holding passports from the seven designated countries.

The Association of American Medical Colleges (AAMC), the American College of Physicians (ACP), the American Hospital Association (AHA), the American Medical Student Association (AMSA), the American Osteopathic Association (AOA) and the Educational Commission for Foreign Medical Graduates (ECFMG) are closely monitoring the situation and have expressed their concerns. The executive order directly affects the nation’s health care industry delivery system, which relies heavily on foreign nationals to deliver patient care, particularly in rural and medically underserved areas. Foreign nationals represent approximately one in four physicians practicing in the United States nowadays.

For more information, a signed copy of the executive order is available at whitehouse.gov. The January 29, 2017, DHS clarification is available at the DHS website.