The Way Forward on Migration – January 30, 2017


Early in my legal career, I volunteered with the ACLU to help teach elementary students about how laws work.  An exercise we would use involved a ban on hats in the classroom.  We’d talk about why there might be a ban on hats (they would block the view of other students) and then try to apply this “law” to specific situations – What about a baseball cap? A giant hair bow? A stocking cap covering the head of a child with cancer?  The children quickly learned that applying laws to real life is never as simple as it seems.

Unfortunately, this simple exercise wasn’t done before the Executive Order was issued.  Sitting on my desk is a copy of the Immigration and Nationality Act which runs 518 pages.  The implementing regulations are contained in two volumes – one at 1045 pages and the other at 685 pages.  This doesn’t include the USCIS Adjudicator’s Field Manual (1367 pages) or any of the thousands of pages of guidance memoranda, forms and instructions or court decisions that govern which foreign nationals are eligible to enter the United States.  Anyone familiar with our immigration system could have quickly identified the challenges that would confront CBP officers trying to interpret the Executive Order.

Corporate leaders and university presidents have rightly condemned these actions as contrary to our values as a nation, as well as the manner in which it was implemented which is sowing chaos, confusion and fear.  International executives, students and faculty and their families are left wondering if they are welcome in our country.  While the administration has now said that the order does not apply to those holding permanent residence, questions remain on how it will impact those on temporary visas for work or study, as well as refugees holding work permits.  While the immediate impact of the EO is at our borders, longer term questions  include the impact on business operations as international employees postpone travel and the workload challenges that will be placed on USCIS and consulates as more intense vetting takes place.

In the years following 9/11, delays in processing visas for legitimate business travelers cost U.S. business more than $30 billion leading the Bush administration to adopt a policy of “Secure Borders and Open Doors.”  The impact today isn’t just on business but also on those seeking protection and the costs are potentially much greater.  We hope that the Trump administration will consult with impacted communities and commit to a policy of secure borders, open doors and open hearts.


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