The Need for an Exception Process Under Last Week’s Executive Order

February 2, 2017
Guest Post

*This piece originally appeared on the Microsoft Blog.

by Brad Smith, President and Chief Legal Officer, Microsoft

Proposal calls for case-by-case exception process for law-abiding visa holders with pressing needs

In last Friday’s executive order, the president expressly gave to the secretaries of state and Homeland Security the authority to grant exceptions on a case-by-case basis, consistent with the national interest, to issue visas and other immigration benefits. Today Microsoft is filing a formal request asking these cabinet officers to create a process to grant exceptions that will permit “Responsible Known Travelers with Pressing Needs” to re-enter the country while protecting the nation’s security. The important details for this proposal are included in our formal request and are outlined below.

At the outset, we recognize that this proposal will not and should not end the broader debate and deliberations regarding last week’s executive order. Our company is one among many that has expressed its views, and we will continue to participate energetically and constructively in the public discussions that help define our democratic processes.

But even amidst these debates, there is an opportunity under the executive order to address the pressing needs of real people. There currently are law-abiding visa holders who are parents that were outside the United States last Friday and therefore cannot re-enter the country. These parents are stranded and separated from their children. Other individuals are confronting genuine family emergencies such as the need to visit a critically ill parent.

At Microsoft we have seen these needs first-hand through some of our 76 employees who are impacted by last week’s order and, together with their 41 dependents, have nonimmigrant visas to live in the United States. These needs almost certainly are not unique to our employees and their families. We believe that limited but important steps to help all such individuals can be taken by the secretaries of state and Homeland Security, consistent with national security and the authority that the president expressly gave to them.

Section 3(g) of last week’s order states expressly that “the Secretaries of State and Homeland Security may, on a case-by-case basis, and when in the national interest, issue visas or other immigration benefits to nationals of countries for which visas and benefits are otherwise blocked.” Acting under this provision, we have filed a request proposing that these cabinet officers create an exception process for “Responsible Known Travelers with Pressing Needs” by satisfying the following criteria:

•     The applicant initially must fall into one of three categories: (a) an individual who already holds a valid nonimmigrant work visa sponsored by a U.S. employer enrolled in the E-Verify program, which helps ensure responsible visa use; (b) an individual who already holds an F-1 student visa to pursue a degree at an accredited U.S. university and can provide documentation from the university showing that he or she is currently enrolled and in good standing; or (c) be an immediate family member of one of these individuals and hold a derivative nonimmigrant visa;

•     The individual must have committed no crime in the United States;

•     If applying to depart from the U.S. and subsequently re-enter, the purpose of the travel must be for an exigent family-related emergency or for the business need of an employer. The travel abroad would be for a duration of no longer than two weeks; and

•     Business travel abroad would not include passage through the countries covered by the executive order. Personal travel abroad for exigent family-related emergencies may allow for travel to any country on a case-by-case basis.

As we explain in our formal request, U.S. immigration authorities already have a wide range of personal information about individuals in the visa categories that we have proposed. This includes individuals’ occupation, place of residence, place of work, family members, state identification/driver’s license information and the existence of any criminal history. In short, these individuals are “known quantities” in their communities: their character, personalities, conduct and behavior is understood by their colleagues, employers, friends and neighbors.

Many of these individuals also fill critical roles in the organizations that employ them, whether they are doctors, scientists, engineers, medical technicians, software developers or any number of other highly skilled professionals. They are deeply valued contributors to the innovation, research and business acumen of our nation, and they serve critical roles in the successful operations of U.S. companies.

We also believe it is appropriate to consider the needs of impacted foreign students pursuing their studies at our nation’s universities. It would be tragic for a student to be faced with the need to forfeit a dream of completing one’s education in the United States to tend to family needs that are entirely outside of one’s control.

In sum, we believe there is a clear opportunity for limited and important action under last week’s executive order.

We know that we do not have all the answers; in publishing this proposal, we hope that others will improve upon our ideas. Nor does this request attempt to address all the important immigration questions currently before the nation. But we believe there is a need and opportunity, amidst the broader debate, for immediate action under the executive order to help real people address pressing needs.