On January 27, 2017, President Donald Trump released an extremely controversial Executive Order (EO) entitled “Protecting the Nation from Terrorist Attacks by Foreign Nationals.” The following is a summary of the EO and its major provisions:
90-Day Ban of Entry. The EO establishes a 90-day ban prohibiting foreign nationals of the following countries from entering the United States: (1) Iran; (2) Iraq; (3) Libya; (4) Somalia; (5) Sudan; (6) Syria; and (7) Yemen. Because the EO states that it applies to both immigrant and nonimmigrant foreign nationals, the EO explicitly included Lawful Permanent Residents (LPRs, or green card holders) in the travel ban. However, the EO also provides that the Secretary of State and Secretary of Homeland Security have discretion, on a case-to-case basis, to issue visas or other immigration benefits despite the ban. Foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas are specifically excluded from the travel ban.
Update: On January 29, 2017, in a press release by the Department of Homeland Security after a firestorm of protests and negative court rulings this weekend, Secretary of Homeland Security John Kelly stated that “absent significant derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status will be a dispositive factor in our case-by-case determinations.” In other words, for the time being, permanent residents from one of the impacted countries will be readmitted, unless “significant derogatory information” would warrant a denial of reentry.
The acting Secretary of State and U.S. Department of State have not released any statements on how they will treat their discretionary factors, except that the DOS has issued a notice advising anyone from the above listed countries to not schedule a visa appointment or pay any visa fees. Click here for a copy of this announcement.
Update (2/1/2017): Customs and Border Protection has clarified that dual nationals will be considered for admission based on the nationality indicated on the passport that they present.
Refugee program. The EO states that U.S. Refugee Admissions Program (USRAP) is suspended for 120 days. The Trump Administration seeks to implement additional procedures to prevent threats to the U.S. Current USRAP applicants may only be admitted to the U.S. after the additional procedures are implemented, and the USRAP program will only resume upon a determination by certain government agencies deeming the revised program as “adequate to ensure the security and welfare of the United States.” The Trump Administration directs that individuals of religious-based persecution be prioritized under the newly revised USRAP program. Like the 90 day ban, the Secretary of State and the Secretary of Homeland Security have discretion, on a case-to-case basis, to allow admission of refugees into the United States, so long as the admission is in the national interest and admission of that individual would not pose a risk to the security or welfare of the United States.
Syrian Refugees. The EO specifically prohibits Syrian refugees from entry into the U.S. until President Trump determines that USRAP is adequately revised “to ensure that the admission of Syrian refugees is consistent with the national interest.” As a result, Syrian refugee admission is blocked indefinitely.
Suspension of the Visa Interview Waiver Program. The EO also indefinitely suspends the Visa Interview Waiver Program (VIWP). This means that nonimmigrants (for example H-1B holders) who require a visa to enter the U.S. are required to attend an in-person interview at a U.S. Consulate in order to renew their visas, regardless of whether they had previously qualified for a visa or would have previously qualified for mail-in visa issuance procedures. As a result, nonimmigrant visa holders (including those applying for work visas, such as an H-1B or L-1) who are currently overseas and require a visa to reenter the U.S. should anticipate that a visa interview will be necessary and that visa processing times will increase.
Future Changes and Suggested Practice. The EO is quite broad and specifically leaves open the possibility for further changes to the U.S. immigration system that may be even more restrictive. For example, the White House administration is requiring reports from several government agencies to determine whether a permanent ban on entry should apply to foreign nationals from specific countries or whether additional countries should be added to the travel ban. Moreover, the Trump Administration is calling for the implementation of a biometric entry-exit tracking system that is expected to be more restrictive and will affect all travelers.
For the time being, we strongly advise against traveling outside of the U.S. for those who are or may be impacted by the EO, especially nonimmigrant visa holders of the enumerated countries.
As evidenced by this EO and its implementation, significant changes to long-standing immigration practice and policy may be made very quickly and with little warning for the foreseeable future. As a result, caution should be followed and advice from immigration counsel should be sought before international travel is commenced.
Taking Action. We know that many of our clients (even those who are not from one of the listed countries) have very serious concerns about the EO, its implementation, and its impact on their businesses, themselves, or their families. Many business leaders and a bipartisan group of elected representatives have also spoken out against the EO. As a firm, we strongly believe that the EO is the wrong solution to a difficult and complex problem. If you agree, we encourage you to call your elected representatives to express your concerns. You may find information on how to contact your U.S. Representative here or your U.S. Senator here.