Travel Bans, Deportations and Detentions

Nonimmigrant Travel Bans. News reports for the past weeks have indicated the Trump administration is poised to enact travel bans on more than 40 specific countries soon and updates will be posted here. Further travel bans could be erected, such as to protect the domestic labor market, and ban certain visa types (for example).

April 5, 2025 - Secretary of State Marco Rubio has revoked all visas of citizens of South Sudan. Visa revocations of foreign students (outlined below) have led to those individuals being deemed out of status, subjecting them to detention and removal. Anyone subjected to detention and the removal process in the United States has a right to notice and an opportunity to be heard in court. Those who are abroad with revoked visas may not have a right to contest such actions, however, under the Doctrine of Consular nonreviewability.

Immigration laws enacted in the 1950’s allow the President absolute authority to shut down visa processing and/or ban the entry of certain non-citizens (except Lawful Permanent Residents) at any time, without notice, and for any reason. Legal challenges to travel bans in the Supreme Court during the first Trump administration were unsuccessful, solidifying the authority of the President to refuse entry arbitrarily and abruptly.

Exempt from Travel Bans. Travel bans do not apply to U.S. citizens, Lawful Permanent Residents (LPRs), or those who have a spouse or child who is a U.S. citizen or LPR. Aside from those individuals, anyone with a valid visa can be refused entry through Presidential proclamation without notice, and so international travel during this administration is and will continue to be risky.

Foreign Policy Deportations of Green Card holders. The government is seeking to deport some LPRs who have engaged in lawful civil protests under a “Foreign Policy” ground of deportation. LPRs must be given a hearing before an immigration judge, and have extensive due process rights to defend against deportation. While the Foreign Policy ground (INA Sec. 237(a)(4)(C)) gives the Secretary of State authority to place any non-citizen at risk of deportation if they have “reasonable ground to believe [the non-citizen’s presence or activities in the U.S.] would have potentially serious adverse policy consequences for the United States”, it cannot be due to a person’s beliefs, statements, or associations if they are lawful in the U.S., except in the case where the Secretary of State personally determines that the person’s presence or activities compromise a compelling United States foreign policy interest.

The only court case to have decided whether this Foreign Policy law is constitutional or not ruled that it was unconstitutional and void. The First Amendment to the U.S. Constitution protects free speech. LPRs should consider, however, the risks in engaging in protected free speech activities such as being detained, having to fight removal, and the risk that a higher court will find the law constitutional. Certainly the invocation of this rule against settled green card holders is likely to have a chilling effect on free speech activity in this country by those who are not U.S. citizens.

Detentions. Some lawful nonimmigrant applicants for admission have been detained while they are being processed for removal, sometimes for weeks, in contrast with past practice to refuse admission and allow a person to remain out of custody. Any nonimmigrant (whether traveling under ESTA Visa Waiver or with a valid visa) can be subject to a charge they are not admissible and can be ordered removed summarily without a hearing or lawyer present, and on the order only of a low level border official. In such “expedited removal” cases, the individual is detained before being deported, sometimes for weeks.

Alien Enemies Act of 1798. The President has invoked an archaic wartime law from the Eighteenth century to justify the removal of noncitizens from the country without usual immigration court procedures. On April 7, 2025, the U.S. Supreme Court ruled that individuals subject to this law have a right to challenge the legality and factual basis of their removal under this law, but that such challenges must be filed via an individual habeas corpus petition in the location where they are detained.

The Department of State (DOS) began in March to revoke visas of those involved in student protests, and in some cases had ICE place individuals in removal proceedings and take them into custody. While these actions are being challenged, it shows that this administration is willing to impinge on the Constitutional guarantee of free speech to silence protest.

As of April 2, 2025, the press has released a DOS memo directing consular officers to engage in enhanced screening and social media vetting of certain visa applicants, primarly F-1, M-1 and J-1 students. Specifically those with any of the following factors will be delayed in visa issuances while investigations occur into their social media posts:

1. Are otherwise eligible but the consular officer has “reason to believe has openly advocated for a designated foreign terrorist organization;

2. Were previously in F-1, M-1, or J-1 status in the U.S. between October 7, 2023 and August 31, 2024; or

3. Prior SEVIS record was terminated between October 7, 2023 and the present.

   April 5, 2025 - As outlined in the first section of this website, Secretary of State Marco Rubio revoked the visas of all citizens of South Sudan.

Workplace Enforcement

Immigration enforcement agents can enter an employer’s public spaces and can ask questions, but in order to access private spaces they need either 1) a warrant or 2) consent.

Search warrants for undocumented workers can be issued by a court when the agents convince a judge that there is a particular individual working unlawfully or even a plausible basis to believe that undocumented workers are at a workplace. Employers may ask to view the warrant but may not obstruct the officers in carrying out a warrant. Employers may request time to consult with legal counsel but may not delay access. The search process should be documented by a designated employee, which can be as simple as making handwritten notes of the who, what, where, why, and when. The warrant will specify what the agents can do.

If there is no warrant, employers can decide whether to consent or not to a search and can define the scope and duration of any consent search. It is advisable to withhold consent until counsel can be consulted, because agents can often obtain adverse evidence from a consent search that they would not otherwise obtain through the warrant process.

Whether there is a warrant or not, the employer and employees have the right to remain silent, the right to request an attorney, and the right to decline to sign any documents. Those employees who greet visitors to the employer should be aware of these guidelines.

H-1B site visits are distinctly different than searches for undocumented workers or I-9 reviews. In the case of a government employee visiting an H-1B worksite the government is seeking to verify that the claims made in the H-1B petition (such as wages, location of employment, duties of H-1B workers) are being complied with. In such cases those who are responsible for greeting visitors should be trained on locating relevant HR professionals, the manager, and the employee so an on the spot interview can be facilitated. The government investigator looking to confirm the H-1B particulars should be asked for identification and told to wait for the individuals they are seeking to interview about the petition. A report is then made by the investigator that goes back to USCIS.

Employment Eligibility Verification

Employers should conduct internal audits of I-9 Forms and strongly consider the adoption of the I-9 program E-Verify which allows employers to verify the work authorized status of new employees. Internal audits should be documented as proof of good faith compliance with the verification laws. If an employer operates in an industry with a higher than usual average population of undocumented workers, the employer should prepare for the increased possibility of audits.

When an employer has their I-9 records audited, they are provided with at least 3 days notice within which to produce the company’s I-9 forms for inspection. Employers will also be asked to provide an employee roster with names, dates of birth, social security numbers, and date of hire (and termination if within 1 year), so the auditor can review it against the I-9 records. The audit might also request things like payroll data, quarterly payroll statements, business documents and licenses, independent contractor rosters, and other records.

If an employer does not already utilize the E-verify program it may be time to consider participating due to the benefits this program.

Alien Registration