Executive order suspends entry to the U.S. — what you need to know



January 31, 2017

Immigration Law Alert

Author(s): Jason Gerrol

On January 27, 2017, President Trump signed an executive order (EO), that “suspends” entry to the United States for nationals from seven countries: Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen. With very few exceptions, the order impacts all nationals from these countries, including U.S. lawful permanent residents, non-immigrant visa holders (e.g., F-1, L-1, H-1B, etc.), immigrant visa holders, refugees, and dual nationals (i.e., individuals in possession of a passport from a designated country and a passport from a non-designated country). The EO does not call for the removal of those currently in the U.S. in lawful status, but impacted individuals should not depart the U.S. while the EO is in effect.

How long will the suspension last?

For nationals on an immigrant visa or non-immigrant visa, the EO suspends entry into the U.S. for a period of 90 days from the date of the order. During this 90 day period, the Department of Homeland Security (DHS), in consultation with the Department of State and Director of National Intelligence, will conduct a review to determine the information needed from any country to determine if the individual applying for a visa, or seeking admission to the U.S., is in fact the person the individual claims to be, and is not a security or public safety threat. If a country does not respond with “adequate information” to make this determination, the suspension may be extended beyond 90 days, or indefinitely until “adequate information” is received.

Similarly, the EO suspends the U.S. Refugee Admissions Program for a period of 120 days from the date of the order, and no refugees from the designated countries will be admitted to the U.S. during this time period. 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 procedures are necessary to “ensure that those approved for refugee admission do not pose a threat to the security and welfare of the United States.” After 120 days, admissions of refugees will resume only if it is determined those “additional procedures are adequate,” leaving open the possibility of a suspension longer than 120 days. The EO effectively bans future refugees from Syria until further notice.

Will additional countries be added to the list?

Possibly. As part of the review process described above, the EO indicates the Department of State or DHS “may submit to the President the names of any additional countries recommended for similar treatment.”

Are there any exceptions to the suspension?

There are very limited exceptions to the EO. The EO expressly excludes, from the suspension, nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas (transit visas), and G-1, G-2, G-3, and G-4 visas (international organizations). The vast majority of non-immigrant visas (e.g., F-1, H-1B, etc.) are not excluded from the EO.

On January 29, 2017, the DHS clarified that U.S. lawful permanent residents will be admitted on a case-by-case determination.

What developments have occurred since January 27, 2017?

On January 28, 2017, a federal judge for the Eastern District of NY granted a nationwide stay on removal of individuals with valid visas and approved refugee applications, and a federal court in Massachusetts issued a similar ruling, but went a step further by barring federal immigration officers from detaining individuals subject to the EO (the Massachusetts ruling does not extend beyond Massachusetts).

On January 29, 2017, DHS issued a statement indicating they (i.e., U.S. Customs and Border Protection) will comply with the court orders by not removing anyone from the U.S., but also suggested they would continue to enforce the EO. The statement also indicated an increased effort to work with airlines to prevent individuals from being able to board a flight to the U.S. (and thus they “do not anticipate further individuals traveling by air to the United States will be affected.”). As previously mentioned, the DHS statement also clarifies that U.S. lawful permanent residents will be admitted on a case-by-case determination.

What should impacted individuals do?

If currently in the U.S., impacted nationals should not leave the country, and any future international travel plans should be put on hold.

If currently outside the U.S., professional immigration assistance should be sought to facilitate re-entry to the U.S.

The situation remains very fluid, with updates on the enforcement of the EO and legal challenges to the EO occurring almost by the hour. For the latest information, please consult with your Nixon Peabody attorney, or a member of the Nixon Peabody immigration team.

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.

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