President Trump issued a series of Executive Orders moments after being sworn into office. Of the 42 Executive Orders, nine relate to immigration and the southern border and reflect the President’s priorities for taking bold action on immigration, including extreme vetting of foreign nationals, restricting birthright citizenship, suspending asylum and refugee processing, and enacting sweeping restrictions and enforcement measures at the U.S.-Mexico border. Some of the orders have already prompted or are certain to prompt litigation, while others may go into effect immediately. Here are some key takeaways.
Protecting the Meaning and Value of American Citizenship
This Executive Order revises the interpretation of birthright citizenship under the Fourteenth Amendment. It specifies that individuals born in the United States are not automatically granted citizenship if either:
- The mother was present in the United States unlawfully and the father was not a U.S. citizen or lawful permanent resident at the time of birth.
- The mother’s presence in the United States was lawful but temporary (including visiting the United States under the Visa Waiver Program or visiting on a student, work, or tourist visa) and the father was not a U.S. citizen or lawful permanent resident at the time of birth.
The order does not affect the citizenship documentation rights of children of lawful permanent residents. It requires relevant departments to align their regulations with this order and issue public guidance within 30 days.
Policy Implementation. This policy applies to individuals born in the United States after 30 days from the date of the order. U.S. government departments and agencies are prohibited from issuing or accepting documents recognizing U.S. citizenship for individuals born under the specified conditions.
Enforcement and Guidance. Executive departments and agencies must issue public guidance on implementing the order within 30 days. The Secretary of State, Attorney General, Secretary of Homeland Security, and commissioner of Social Security must ensure their departments’ regulations align with the order.
This order will result in the denial of automatic citizenship for individuals born in the United States under the conditions specified above. This includes children born to individuals who have been lawfully residing in the United States and subject to taxation for several years.
This Executive Order was immediately challenged in court. Within two hours of its signing, the American Civil Liberties Union and other immigrant rights groups filed a lawsuit challenging the order as violating the Fourteenth Amendment and accusing the Administration of ignoring long-standing federal law and congressional intent. This is the first in a series of lawsuits expected to follow the passage of the President’s Executive Orders.
Protecting the American People Against Invasion
This Executive Order aims to maximize immigration enforcement by directing U.S. Immigration and Customs Enforcement (ICE) to prioritize the enforcement of laws related to the illegal entry and unlawful presence of aliens in the United States. To that end, the order has components meant to ensure the prioritization of the removal of inadmissible or removable aliens.
Civil and Criminal Enforcement Priorities (Sec. 4 & 5). The order mandates immigration agencies, including ICE, U.S. Customs and Border Protection, and U.S. Citizenship and Immigration Services, to prioritize the enforcement of immigration laws and prosecution of offenses related to unauthorized entry or presence in the United States. This means there could be an uptick in worksite enforcement actions. The President confirmed as much in his impromptu press conference on January 20, 2025 while signing the Executive Orders.
Homeland Security Task Forces (Sec. 6). Establishes task forces nationwide to combat criminal organizations and human trafficking, with a focus on cross-border activities.
Civil Fines and Penalties (Sec. 8). The order directs the Secretary of Homeland Security to ensure the assessment and collection of fines and penalties authorized under the law for ICE enforcement efforts against aliens unlawfully present in the United States and from those who facilitate such aliens’ presence. Employers who knowingly retain unauthorized workers may now be the targets of the fines and penalties.
Detention and Removal (Sec. 9 & 10). Directs the Secretary of Homeland Security to ensure efficient removal processes and expand detention facilities for removable aliens.
Federal-State Agreements (Sec. 11). The Secretary of Homeland Security is directed to authorize state and local law enforcement to perform immigration officer functions through agreements under Section 287(g) of the Immigration and Nationality Act (INA). This enhances cooperation between federal and local authorities.
Sanctuary Jurisdictions (Sec. 17). Instructs the Attorney General and Secretary of Homeland Security to take actions against jurisdictions that interfere with federal law enforcement operations, potentially affecting their access to federal funds.
Information Sharing (Sec. 18). Ensures compliance with information-sharing provisions to aid law enforcement and immigration status verification.
Denial of Public Benefits (Sec. 20). Directs the cessation of public benefits to illegal aliens not authorized under the INA.
A key feature of this Executive Order is the mandate to double down on fines and penalties for not only unauthorized aliens but also those who facilitate such aliens’ presence in the United States. This order could have a significant impact for companies across various sectors. Employers should anticipate an increase of I-9 audits, immigration enforcement actions, investigations, and site visits related to immigration compliance. Employers that have failed to maintain a robust immigration compliance program should take proactive steps to ensure they are fully compliant with immigration laws, including conducting a robust I-9 audit and evaluating their hiring and onboarding practices to ensure compliance.
Within 90 days of January 20, 2025, the Secretaries of the Treasury and Homeland Security must report on their progress of this implementation, including recommending any additional actions that may need to be taken to achieve this order’s objectives.
Guaranteeing the States Protection Against Invasion
This proclamation closes the southern border, suspending the physical entry of aliens, by declaring entry “detrimental to the interests of the United States.” It also prohibits entry of aliens who do not provide U.S. officials with sufficient medical information, reliable criminal history, and background information. The proclamation directs the Secretary of Homeland Security, in coordination with the Secretary of State and Attorney General, to take appropriate actions to achieve the objectives of the proclamation until the President issues a finding that the “invasion” at the southern border has ceased.
Immediate suspension of entry of migrants at the southern border, including asylum seekers
The President asserts inherent executive powers under Article II of the Constitution to control borders and foreign affairs to declare the southern border to be an “invasion” and directs federal agencies to take necessary actions to remove aliens engaged in this invasion from the southern border until the President determines the invasion has ceased. It also restricts aliens from invoking provisions of the INA that would permit their continued presence in the country, including Section 208 of the INA – the statutory provision for asylum. The order calls for the immediate suspension of entry of migrants at the southern border and directs federal agencies to take necessary actions to repel, repatriate, or remove such aliens.
This order is certain to be challenged in court based on violation of the immigration statute, due process, and constitutional authority.
Declaring a National Emergency at the Southern Border of the United States
This Executive Order declares a national emergency at the southern border of the United States and directs the Department of Defense to deploy military personnel and resources to support the Department of Homeland Security in securing the border. It also mandates the construction of additional physical barriers and the potential use of unmanned aerial systems. By invoking Sections 201 and 301 of the National Emergencies Act and 10 U.S.C. § 12302, the President leverages the armed forces to back his mandate to secure the border.
Deadline. Within 30 days of January 20, 2025, the Secretary of Defense must provide a report to the President on actions taken to execute the objectives on this order. Within 90 days, the Secretaries of Defense and Homeland Security must report on the conditions at the southern border and recommend further actions, including the invocation of the Insurrection Act of 1807.
Securing Our Borders
This Executive Order on border security and immigration policies aims to secure U.S. borders and stem the tide of unauthorized migration. Key policies include:
- Physical Barriers. Construct physical barriers for complete control of the southern border, including a physical wall.
- Personnel Deployment. Deploy sufficient personnel to the southern border to enforce immigration laws, including military personnel.
- Detention Policies. Detain aliens apprehended on suspicion of violating federal or state law or for immigration violations until removal and end “catch-and-release” practices.
- Migrant Protection Protocols. Resume protocols to return certain aliens to their country of origin pending removal proceedings.
- Parole Policy Adjustments. Terminate certain applications and parole programs contrary to new policies, including the program known as the “Processes for Cubans, Haitians, Nicaraguans, and Venezuelans.”
- International Cooperation. Facilitate international agreements to support border security.
- DNA and Identification. Implement DNA and identification requirements for detained aliens pursuant to the DNA Fingerprint Act of 2005.
- Prosecution Prioritization. Focus on prosecuting offenses related to border security, including human trafficking, human smuggling, child trafficking, and sex trafficking.
Deadline. Within 14 days, the Attorney General and the Secretaries of State, Health and Human Services, and Homeland Security must provide recommendations for further actions to augment security at the southern border.
Protecting the United States from Foreign Terrorists and Other National Security and Public Safety Threats
This Executive Order seeks to enhance national security by tightening immigration controls and ensuring that foreign nationals do not pose threats to the United States. It mandates comprehensive interagency efforts to vet and screen individuals, particularly from high-risk areas, and evaluates existing immigration policies to safeguard national interests.
This Executive Order requires enhanced vetting and screening of visa applicants across various agencies, including:
- Resource Identification. Agencies must identify resources for maximum vetting of aliens.
- Information Determination. Agencies must establish necessary information from countries for visa adjudication.
- Baseline Reestablishment. Agencies must reinstate uniform screening standards from January 19, 2021.
- Vetting Focus. Prioritize screening of aliens from high-risk regions.
- Additional Measures to Protect the Nation. Agencies must evaluate and adjust regulations to ensure safety and security, implement stringent identification requirements for refugees, and other visa applicants.
Timeline of actions and deadlines
- Agency leaders, including the Secretary of State, Attorney General, Secretary of Homeland Security, and Director of National Intelligence, must promptly identify resources for maximum vetting of foreign nationals.
- Within 30 days of January 20, 2025, agency leaders must evaluate and adjust regulations, policies, and procedures to ensure safety and security.
- Within 60 days of January 20, 2025, agency leaders must jointly submit a report to the President identifying countries with deficient vetting and screening information and detailing the number of nationals from those countries admitted to the U.S. since January 20, 2021.
Realigning the U.S. Refugee Admission Program
Effective January 27, 2025, the U.S. Refugee Admissions Program (USRAP) will be suspended to align refugee entry with U.S. interests. The order’s stated purpose is to prioritize public safety, national security, and resource preservation for U.S. citizens. Key provisions include:
- Addressing record migration levels and resource strain on U.S. communities.
- Ensuring refugee admissions prioritize safety, security, and assimilation.
- Suspending USRAP, with exceptions for national interest cases.
- Requiring periodic reports to assess resuming refugee admissions.
- Revoking Executive Order 14013, passed under President Biden, which focused on increasing refugee resettlement and advocating for humanitarian aid and support for refugees.
This order suspends refugee admissions, pending further evaluation, and allows state and local governments more influence in refugee resettlement.
It is interesting to note that of the 25,465 refugees who were resettled in the United States in FY 2022, the largest percentage was from Africa (44.6%), followed by the Near East/South Asia (27.7 %), Latin America/Caribbean (9.8 %), Europe/Central Asia (9.2%), then East Asia (8.7%).
Deadline. Within 90 days of January 20, 2025, the Secretary of Homeland Security, in consultation with the Secretary of State, must report to the President whether the resumption of refugee admissions would be in the U.S. national interest. Further, every 90 days, additional reports must be submitted until a determination is made that resumption of USRAP is in the national interest.
The suspension of USRAP could result in several legal challenges. Immigrant rights advocates may argue that the suspension exceeds the President’s authority under the INA; violates constitutional rights, such as due process or equal protection; or is arbitrary, capricious, or not in accordance with law under the Administrative Procedure Act. However, the President’s justification that his primary goal is to protect national security and public safety may be palatable to the courts.
Designating Cartels and Other Organizations as Foreign Terrorist Organizations and Specially Designated Global Terrorists
This Executive Order establishes a process to designate certain international cartels and other organizations as foreign terrorist organizations or specially designated global terrorists. Within 14 days of January 20, 2025, the Secretary of State, in consultation with other relevant officials, must recommend designating any cartel or organization as a foreign terrorist organization or specially designated global terrorist, and the Attorney General and Secretary of Homeland Security, in consultation with the Secretary of State, must prepare for the implementation of any decision to invoke the Alien Enemies Act. This includes preparing facilities for the expedited removal of designated individuals.
Clarifying the Military’s Role in Protecting the Territorial Integrity of the United States
Within 10 days of January 20, 2025, the Secretary of Defense must deliver to the President a revision to the Unified Command Plan that assigns U.S. Northern Command (USNORTHCOM) the mission to seal the borders and maintain the sovereignty, territorial integrity, and security of the United States by repelling forms of invasion, including unlawful mass migration, narcotics trafficking, human smuggling and trafficking, and other criminal activities.
Impact on Domestic Labor Force
This series of Executive Orders on immigration will have an immediate impact on immigrants who make up the domestic labor force. Sponsored foreign national workers on E, H-1B, L-1, TN, and O visas and other nonimmigrant visas with children born after February 19, 2025 may be unable to obtain U.S. passports and may instead have to obtain evidence of their child’s dependent status by means of an immigration application. Foreign national workers with work authorization pursuant to the parole program for Cubans, Haitians, Nicaraguans, and Venezuelans will lose work authorization with no immediate pathway for obtaining lawful work authorization because the program introduced by the Biden Administration in 2023 was already scheduled to sunset in 2025 and has now been halted.
More Executive Orders and actions on immigration are expected in upcoming months as administrative agencies develop policies and regulations to implement the President’s mandate. Our Immigration Team is closely monitoring the implementation of the President’s Executive Orders and will provide updates on these and future orders on immigration.
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