March 07, 2017
Author(s): Jason Gerrol
NOTE: A revised travel ban has been issued since the publication of this alert. Please click here to read about the latest version of Trump’s travel ban.
On March 6, 2017, President Trump signed an executive order (EO) that again suspends entry to the United States of nationals of six designated countries: Sudan, Syria, Iran, Libya, Somalia, and Yemen. The March 6, 2017 EO is similar to the previous EO issued by President Trump on January 27, 2017, but differs in several key respects. The new EO removes Iraq from the list of designated countries; does not apply to U.S. lawful permanent residents; and does not preclude an individual who had a valid visa on January 27, 2017 or who holds a valid visa on the effective date of the EO from returning to the United States—among other key differences discussed further in this alert. For those currently outside the U.S., and in need of a visa, the EO does offer case-by-case waivers and impacted individuals should be sure to consult an immigration professional prior to any international travel plans. The new EO will become effective at 12:01 a.m. ET (eastern time), on March 16, 2017 (the effective date).
The EO applies to foreign nationals from Sudan, Syria, Iran, Libya, Somalia and Yemen, who are outside the United States and who did not possess a valid immigrant or non-immigrant visa at 5:00 p.m. (ET) on January 27, 2017, and do not have a valid visa on the effective date of the EO (March 16, 2017). Therefore, as stated by the Department of Homeland Security (DHS) in an EO Fact Sheet, “any individual who had a valid visa either on January 27, 2017 (prior to 5:00 p.m.) or holds a valid visa on the effective date of the EO is not barred from entry.”
For any individual unable to travel to the U.S. as a result of the travel suspension, the EO does allow for case-by-case waivers in circumstances including, but not limited to: (1) the foreign national was previously admitted to the U.S. for a continuous period of work, study, or other long-term activity and seeks to re-enter the U.S. to resume that activity; (2) the foreign national seeks to enter the United States for significant business or professional obligations; (3) the foreign national seeks to enter the U.S. in order to reside with a close family member who is a U.S. citizen; (4) the foreign national is an infant, an individual needing urgent medical care or someone whose entry is otherwise justified by the special circumstances of the case; (5) the foreign national is a landed Canadian immigrant who applies for a visa at a location within Canada; or (6) the foreign national is traveling as a U.S. government-sponsored exchange visitor.
No. The EO expressly states the travel suspension does not apply to U.S. lawful permanent residents.
In addition, the EO and DHS Fact Sheet clarify the March 6, 2017 EO travel suspension will not apply to the following individuals: (1) any dual national of a designated country, when the individual is traveling on a passport issued by a non-designated country; (2) any individual of a designated country in possession of a valid immigrant or non-immigrant visa either on January 27, 2017 (prior to 5:00 p.m. (ET)) or who holds a valid visa on the effective date of the EO (March 16, 2017); (3) any foreign national who has a travel document other than a visa (e.g., an advance parole document) valid on the effective date of the EO or issued on any date thereafter; (4) any foreign national traveling on a diplomatic visa, North American Treaty Organization visa, C-2 visa, or G-1, G-2, G-3 or G-4 visa; and (5) any foreign national who has been granted asylum, any refugee already admitted to the U.S. or any individual who has been granted withholding of removal, advance parole or protection under the Convention Against Torture.
On January 27, 2017, President Trump issued a similar EO, which was quickly met with several lawsuits, including a lawsuit from the state of Washington challenging the EO as unconstitutional. On February 3, 2017, a Washington federal judge issued a nationwide temporary restraining order, and on February 9, 2017, the Ninth Circuit Court of Appeals refused to lift the restraining order, finding the government had not shown a likelihood of success on the merits of the case. The new EO revokes the January 27, 2017 EO, and replaces it with the revised EO, “which expressly excludes from the suspensions categories of aliens that have prompted judicial concerns and which clarifies or refines the approach to certain other issues or categories of affected aliens.” Importantly, the March 6, 2017 EO no longer contains a controversial provision calling for the prioritization of refugee claims based on religious-based persecution, but only if the religion of the individual is a minority religion in the individual’s country of nationality.
Similar to the January 27, 2017 EO, the travel suspension will last for 90 days from the effective date of the order. During this 90 day period, the DHS, in consultation with the Department of State and Director of National Intelligence, will conduct a review to determine what additional information will be needed from each designated country in order to determine whether or not an individual is a security or public safety threat. If a country does not respond with adequate information, the travel suspension for that country will be extended beyond 90 days.
During this 90 day review period, and at any time thereafter, the Secretary of State, the Attorney General, or the Secretary of Homeland Security may submit the names of additional countries “for which any of them recommends other lawful restrictions or limitations.”
In addition, while the March 6, 2017 EO clarifies that refugees whose travel has already been approved and formally scheduled by the Department of State will be allowed to enter the U.S., additional refugee admissions will be suspended for a period of 120 days from the effective date of the order. Consistent with the January 27, 2017 EO, the Department of State, in conjunction with DHS and the Director of National Intelligence, will review the refugee application process during this time period to determine what additional information is necessary to “ensure that individuals seeking admission as refugees do not pose a threat to the security and welfare of the United States.”
Individuals in this situation should consult with an immigration professional prior to travel. The previously mentioned DHS Fact Sheet addresses a similar question regarding an individual whose visa will expire while outside the United States, and simply states the individual must obtain a new visa prior to returning to the U.S. However, the DHS Fact Sheet does not address the impact of the EO on an individual currently in the U.S., but who did not possess a valid visa on January 27, 2017 or the effective date of the EO, but who needs a valid visa in order to return to the U.S. While the impact of the EO on such individuals remains unclear, one of the case-by-case waivers discussed above may be available in this situation.
While the EO states it only applies to individuals outside the United States, there remains uncertainty regarding the EO’s application to individuals currently in the U.S., but who did not possess a valid visa (or other travel document) on January 27, 2017 or the effective date of the EO. Such individuals should seek professional immigration assistance prior to any international travel. In addition, for those currently outside the United States and who do not possess a valid visa, professional immigration assistance should be sought to facilitate reentry to the U.S.
Following the effective date of the new EO, foreign nationals who are not from one of the six designated countries may nevertheless experience additional questioning and secondary inspection when traveling to the U.S. and should seek professional immigration assistance prior to planning their travel.
The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.
Immigration Law Alert | 12.06.17
Immigration Law Alert | 09.25.17
Immigration Law Alert | 06.26.17
Immigration Alert | 03.17.17
Immigration Law Alert | 01.31.17