Immigration DispatchMarch 8, 2017
A closer look at the new “travel ban” Executive Order
As we reported Monday, President Trump has signed a new “travel ban” Executive Order that revokes the one he issued on January 27. The new EO will take effect at 12:01 a.m. EDT on March 16. We promised on Monday to provide a more comprehensive analysis of the new EO.
From seven banned countries to six
The new EO provides a rationale for the list of “banned” countries and eliminates Iraq from the original list of seven. Now there are only six countries on the list (Iran, Libya, Somalia, Sudan, Syria, and Yemen), but other countries may be added in the future. The suspension period is 90 days from the effective date of the EO, or 90 days from March 16.
However, the scope of the travel ban is more limited now. The 90-day ban now applies only to foreign nationals from the six countries who (1) are not currently in the United States as of March 16, (2) did not have a valid visa as of 5 p.m. EST on January 27 (the date of the original EO), and (3) do not have a valid visa as of March 16.
Who is not suspended?
The suspension of entry does not apply to (1) any lawful permanent resident of the United States (“green card” holder); (2) any foreign national admitted or paroled into the United States after March 16; (3) any foreign national who has a travel document other than a visa (such as advance parole) that permits entry to the United States; (4) any dual national when the individual is traveling on a passport issued by a non-designated country; (5) any foreign national traveling on a diplomatic visa; or (6) any foreign national who has been granted asylum, any refugee who has already been admitted to the United States, or any person who has been granted some type of protection under the convention against torture.
A waiver may be granted by a consular officer or a Border Patrol officer on a case-by-case basis, when the denial of entry would cause “undue hardship” and the person’s entry during the suspension period would not pose a threat to national security and would be in the “national interest.” The EO provides that waivers might be appropriate for a foreign national who
- Was “previously admitted for a continuous period of work, study or other long-term activity and is outside the United States on the effective date of” the EO and “seeks to reenter the United States to resume that activity, and the denial of reentry during the suspension period would impair that activity.”
- “[P]reviously established significant contacts with the United States but is outside the United States on the effective date . . . for work, study, or other lawful activity.”
- Seeks entry “for significant business or professional obligations and the denial of entry during the suspension period would impair those obligations.”
- “[S]eeks to enter the United States to visit or reside with a close family member (e.g., a spouse, child, or parent) who is a United States citizen, lawful permanent resident, or alien lawfully admitted on a valid nonimmigrant visa, and the denial of entry during the suspension period would cause undue hardship.”
- “[I]s an infant, young child, or adoptee, an individual needing urgent medical care, or someone whose entry is otherwise justified by the special circumstances of the case.”
- “[H]as been employed by, or on behalf of, the [federal government] (or is an eligible dependent of such an employee) and the employee can document that he or she has provided faithful and valuable service to the [federal government].”
- “[I]s traveling for purposes related to an international organization designated under the International Organizations Immunities Act . . ., traveling for purposes of conducting meetings or business with the [federal government], or traveling to conduct business on behalf of an international organization not designated under the IOIA.”
- “[I]s a landed Canadian immigrant who applies for a visa at a location within Canada.”
- “[I]s traveling as a United States Government-sponsored exchange visitor.”
The refugee ban remains in place for 120 days from March 16, but it does not apply to applicants “who, before the effective date of this order, have been formally scheduled for transit by the Department of State.” Refugees for fiscal year 2017 are capped at 50,000.
Visa interview waivers
The new EO, like the original, suspends the Visa Interview Waiver Program unless a statutory exception applies. Suspension of the waiver program does not apply to those traveling on “diplomatic or diplomatic-type” visas, NATO visas, or C-2 visas to the United Nations. Also exempted are individuals traveling on G-1, G-2, G-3, or G-4 visas; “for purposes related to an international organization designated under the IOIA”; or to conduct “business or meetings with the [U.S.] government.”
Restoration of visas; no “retro” revocation
The new EO makes clear that no immigrant or nonimmigrant visa issued before the March 16 will be revoked because of the EO. Moreover, travel and entry rights are restored to any individual whose visa was revoked or cancelled solely because of the original EO.
The original “travel ban,” Executive Order 13769, imposed a 90-day suspension on entry into the United States of anyone from a list of seven countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. It also instituted a 120-day suspension of entry under the United States Refugee Admissions Program. It did not clearly specify what the status would be of immigrants from the seven countries who had permanent legal residency in the United States (“green card” holders), or who held dual citizenship. And because the EO was issued without prior notice, chaos ensued at U.S. airports as immigrants who had left for the United States before the EO was issued were denied entry when they arrived after the EO was issued.
In February, a federal court in Seattle issued a temporary restraining order blocking the EO from taking effect, and the U.S. Court of Appeals for the Ninth Circuit refused to stay (suspend) the TRO while the government appealed. Not long afterward, the Trump Administration decided to forgo litigation and, instead, issue a new EO that would attempt to address the courts’ concerns.
Recommendation for employers counseling foreign nationals
The current EO corrects many of the errors and ambiguities in the original EO. It may fare better under a court challenge than the original, but that remains to be seen.
This morning, the State of Hawaii filed a motion for a temporary restraining order that would block the new EO from taking effect. Hawaii is also in the Ninth Circuit.
Until there is more clarity on the legal status of the new EO and how the government intends to enforce it, we continue to recommend that any individuals from the six “banned” countries avoid unnecessary travel outside the United States.
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