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    February 2017

    Looking Ahead: Immigration & International Programs Under the Trump Administration

    President Trump’s recent Executive Order 13769 (EO) on immigration caused tumult for many colleges and universities when it was implemented. With more than 20 lawsuits challenging the EO, on Feb. 9 the 9th Circuit Court of Appeals upheld a national temporary restraining order (TRO) granted by U.S. District Court in Washington state. While this is a major victory for the rule of law and constitutional separation of powers, it’s only temporary. Additional court rulings and executive orders on immigration are expected, and the approach is difficult to predict.

    What’s Next?

    The Trump administration could respond to the 9th Circuit’s decision by:

    • Litigating the case pending in Washington state (or other similar cases) to defend the enforceability of the EO
    • Adopting new agency policies or seeking congressional action to amend U.S. immigration law to better reflect the new administration’s policies
    • Issuing one or more new executive orders on immigration with language more carefully crafted to survive legal challenges

    These options are not mutually exclusive. Statements from the administration suggest they will release new executive orders on immigration shortly and continue “extreme vetting” of individuals from countries deemed unfriendly with the U.S.

    What Are the Rules Right Now?

    The TRO currently maintains the status quo for visas and travel before the EO. So U.S. authorities remain allowed to screen travelers and visa applicants for security threats and exclude individuals from the U.S. in the exercise of discretion. Reports indicate that individuals are experiencing higher scrutiny generally about country of origin and trips to countries considered unfriendly with the U.S., even for countries not directly referenced in the EO. Individuals should consider the risk of travel in light of their own background and travel history and exercise caution. Immigration practitioners and international education professionals who rely on agency guidance and Q&As for immigration compliance requirements, should know that regulatory agencies can change these types of rules without notice.

    What Should Colleges and Universities Do?

    To maintain stability in your international student/scholar populations and your international workforce, consider adopting these broad, conservative guidelines.

    • Define the “affected” population on campus broadly to include individuals from all countries considered unfriendly with the U.S. Include individuals whose friends and family are affected as well because this  impact may disrupt an individual’s studies and work life.
    • Encourage affected personnel abroad to return to campus now while the TRO is in place.
    • Adopt a working assumption that international students, scholars, and employees from countries unfriendly with the U.S. may be unable to obtain work and study visas for the U.S. in 2017.
    • Advise against foreign travel, study abroad, international assignments, or field work abroad by affected students and personnel during 2017.
    • Offer campus housing during academic breaks for international students who decide not to travel home. Consider how best to support affected minors on campus and their families.
    • Develop a policy regarding potential new campus community members from affected countries to avoid discretionary case-by-case decisions. Institutions may extend offers and acceptances as usual, filing H-1B petitions and issuing Forms I-20/DS-2019 for F-1/J-1 international students and exchange visitors, hoping the individuals ultimately will obtain U.S. visas at consular posts and travel to the U.S. Sponsoring institutions should assume that affected students, scholars, and faculty recruits won’t know until summer whether they will be allowed to enter the U.S. for the fall semester.
    • Offer a directory of available resources to support the affected population, but don’t select personal legal counsel for the campus community. There are a range of potential immigration and travel strategies for affected individuals, based on their personal circumstances and degree of risk aversion, and no strategy guarantees success. The outcome of even the most carefully planned strategy may be disappointing in this enforcement climate. Moreover, providing legal counsel to the affected individual is not recommended given that an institution’s interest in retaining a person may not align with that person’s individual needs or preferences.

    Institutions should prepare for prolonged uncertainty while the Trump administration implements its immigration agenda and focuses on “extreme vetting” of individuals from countries unfriendly with the U.S. By responding proactively and with careful planning, institutions can minimize disruptions to their students, faculty, and community.

    By Leigh Cole, Esquire, director at Dinse, Knapp McAndrew in Burlington, Vt., and counsel to Hirschfeld Kraemer LLP in San Francisco

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