United States: President Trump’s Initial Immigration-Related Executive Orders Focus on Border Enforcement, Extreme Vetting, Birthright Citizenship, and Limits on Humanitarian Programs

Rescission of Biden Administration executive orders. A sweeping executive order rescinds many Biden Administration executive actions, including several key orders affecting employment-based immigration. President Trump rescinded President Biden’s order on restoring faith in legal immigration, which directed the immigration agencies to reduce barriers to legal migration and access to immigration benefits. This order led to numerous administrative improvements in USCIS practices and policies. Also rescinded was President Biden’s order on policies relating to artificial intelligence; that order directed immigration agencies to develop mechanisms to help the United States attract and retain foreign AI and STEM talent and was credited with facilitating nonimmigrant and permanent residence pathways for critical talent.

Enhanced vetting and possible future travel bans. As anticipated, President Trump has issued an executive order requiring enhanced security screening and vetting of foreign nationals applying for U.S. visas, entry into the United States, or U.S. immigration benefits. Under the order, the Secretary of State, working with the Departments of Homeland Security and Justice, and the Director of National Intelligence, must establish screening and vetting standards and procedures for applicants for visas and immigration benefits, consistent with those in effect during the first Trump Administration, and must ensure that such individuals are vetted and screened “to the maximum degree possible,” particularly those individuals coming from countries or regions with identified security risks. Foreign nationals applying for visas and other immigration benefits should expect to see more intensive screening almost immediately.

In addition, within 60 days of the executive order, the State Department, DHS, DOJ, and the Director of National Intelligence must jointly submit a report identifying countries for which entry restrictions may be recommended. The agencies would also review information relating to individuals from these countries who may already be in the United States, to determine whether the actions of any such individuals may merit deportation.

The executive order also calls on the Secretary of State, working with the same above mentioned agencies, to take other enhanced security measures within 30 days of the executive order, including considering appropriate revisions to existing regulations and guidance related to criminal and security grounds of inadmissibility, ensuring stringent identity verification of refugees and stateless individuals prior to any admission to the United States, and evaluating all visa programs to ensure that they are not used by hostile actors to threaten U.S. security.

In addition, a separate order requires the Secretary of State, working with DHS, DOJ, the Treasury Department, and the Director of National Intelligence, to make recommendations for adding international cartels and gangs to the list of organizations designated as Foreign Terrorist Organizations, which can subject these organizations and their members to visa inadmissibility grounds and Treasury sanctions.  

Restrictions on birthright citizenship. President Trump has signed an executive order that seeks to place significant limits on birthright citizenship in the United States for certain groups of children born after February 19, 2025. After that date, the EO would deny U.S. citizenship to the following group of children born in the United States:

• A child whose mother is unlawfully present in the United States and the father is not a U.S. citizen or U.S. lawful permanent resident at the time of the child’s birth; and
• A child whose mother is lawfully, but temporarily, in the United States, and the father is not a U.S. citizen or U.S. lawful permanent resident at the time of the child’s birth. Lawful, temporary status includes but is not limited to B-1/B-2 visitor, F-1 or other student status, H-1B, L-1, TN, O-1, P-1 and any other temporary employment-based nonimmigrant status.

The President orders federal agencies to cease issuance of documents recognizing U.S. citizenship for the above children after February 19, and to refuse to accept documents issued by State, local, or other authorities purporting to recognize their U.S. citizenship. This means that after February 19, children born in the United States to H-1B, L-1, TN, O-1, P and any other employment-based nonimmigrant status (as well as all other types of nonimmigrant status) may find that they are refused U.S. passports by U.S. authorities, and families required to instead obtain evidence of the child’s dependent nonimmigrant status through an immigration application.

The first of what is expected to be several challenges to this order has already been filed in federal court. The underlying legal authority for U.S. birthright citizenship is Section 1 of the 14th Amendment to the U.S. Constitution. The executive order asserts an aggressive interpretation of this constitutional provision.

America First trade policies. A memorandum directs federal agencies to conduct a review of export control regulations, and orders the Departments of Homeland Security, and Commerce to assess unlawful migration and the flow of fentanyl from Canada, Mexico, and China. These reviews are expected to lead to trade and national security measures that may have some effect on employer-sponsored foreign nationals.

Gender identity restrictions. An executive order states that the U.S. government will recognize only two sexes and directs the Departments of State and Homeland Security to implement changes to require that government-issued identification documents – including passports, visas, and Global Entry cards – reflect the holder as either male or female. Agencies are also directed to change government forms in accordance with the order. This likely means that third-gender options, currently available on U.S. passports and certain immigration documents, as well as certain USCIS and State Department application and petition forms, will become unavailable at some point in the future. Federal court challenges to this and other gender-identity restrictions are anticipated.

Termination of humanitarian parole programs. One of President Trump’s executive orders on border security directs the Department of Homeland Security to cease humanitarian parole programs for nationals of Cuba, Haiti, Nicaragua, and Venezuela. The programs, introduced January 2023 and already slated for expiration by the Biden Administration, offered parole and employment authorization benefits to eligible foreign nationals with financial sponsors.

Suspension of the U.S. refugee program. An executive order announces that the United States Refugee Assistance Program (USRAP) will be suspended for at least three months effective January 27, 2025, at 12:01am EST. During this period, decisions on applications for refugee status will be suspended, though the Secretaries of State and Homeland Security will have the authority to admit refugees on a case-by-case basis in the national interest and provided these foreign nationals are not deemed a threat to U.S. security or welfare. Within 90 days of the executive order, DHS and the State Department must issue a report to the White House concerning whether resumption of the USRAP would be in the interest of the United States, and the agencies will be required to make subsequent reports every 90 days thereafter. The order also directs DHS and the Department of Justice to examine whether state and local jurisdictions should have greater involvement in the placement or resettlement of refugees.

Border and internal enforcement. Many of President Trump’s Day One executive orders are focused on the U.S.-Mexico border. The President declared a national emergency at the southern border and characterized the situation as an “invasion” warranting the involvement of the U.S. military, notwithstanding federal laws that limit use of the military to enforce domestic policies within the United States. The order effectively suspends asylum processing at the southern border. Another executive order directs the Defense Department to devise a plan to “seal the borders and maintain the sovereignty, territorial integrity, and security of the United States” by taking action against unlawful mass migration, narcotics and human trafficking, and other criminal activities. A related order designates several cartels as foreign terrorist organizations. 

A separate executive order focuses on interior immigration enforcement, aimed at the removal of unauthorized immigrants and the resetting of civil enforcement priorities at USCIS, Customs and Border Protection (CBP), and Immigration and Customs Enforcement (ICE).

Fragomen is closely monitoring implementation of President Trump’s executive orders and will issue additional client alerts on these and future orders.