On January 27, 2017, President Trump signed an Executive Order relating to visa issuance, screening procedures, and refugees. The Executive Order is titled “Protecting the Nation from Foreign Terrorist Entry Into the United States.”
Key Points of This Executive Order:
• A 90 day ban on the issuance of US visas to and entry to the United States of anyone who is a national of one of seven (7) “designated” countries – Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.
• An immediate review by the US Department of Homeland Security (DHS) of the information needed from any country to adequately determine the identity of any individual seeking a visa, admission or other immigration benefit and that they are not “security or public-safety threats. This report must be submitted within 30 days and must include a list of countries that do not provide adequate information.
• The suspension of the US Refugee Admissions Program (USRAP) for 120 days.
• Visa interview waiver program has been suspended. The order requires all individuals who need visas to apply for them in-person at US consulates, rather than allowing “mail-in” or drop-box applications. Now, anyone who needs a US visa will be required to make an appointment at a US consulate and appear in-person for the visa interview.
How the Executive Order is being implemented
• DOS Visa Issuance: DOS posted a notice to their website over the weekend stating that per the Executive Order, visa issuance to nationals of the countries of Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen has been suspended until further notification.
• USCIS Suspension of Adjudication: There are reports suggesting that USCIS has suspended the adjudication of certain affected immigration benefits. Given the language of the Executive Order and the reports, it appears likely there has been or will be some directive to USCIS on how to handle benefits applications.
• The US Department of State’s (DOS) consulates around the world are not permitted to issue visas to individuals who are nationals of a designated country.
• US Customs and Border Protection (CBP) officers at border crossings, US airports and pre-flight inspection at certain foreign airports are not permitted to admit individuals who are nationals of designated countries or allow them to enter the United States, even if they have a facially valid visa.
• So far the ban includes dual nationals i.e. individuals who were born in one of the designated countries and are citizens of another country that is not on the list of designated countries. However, certain countries e.g Canada appear to have secured exemptions from the ban for their citizens.
• The ban does not apply solely because an individual has visited one or more of the 7 countries.
• Legal Permanent Residents: DHS issued guidance on 1/29/17 deeming that “the entry of
lawful permanent residents to be in the national interest” and so, “absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status will be a dispositive factor on a case-by-case basis. That is, except under unusual circumstances, the ban will not be applied to Legal Permanent Residents, although they may still face additional questioning upon arrival.
• All refugees being processed abroad and seeking admission to the United States are impacted. For most refugees, the suspension is at least 120 days. For Syrian refugees, the ban on admission is indeterminate.
Challenges to the Executive Order:
On Saturday January 28, 2017, the U.S. District Court for the Eastern District of New York issued an emergency stay of certain provisions of the Executive Order. Thus, the US government is restrained from barring holders of valid immigrant and nonimmigrant visas and other individuals from the 7 designated countries. This stay applies nationwide.
Please note, the stay is not permanent and it is currently unclear how long it will last. In the midst of this uncertainty below is our advice on travel outside the United States.
Advice on travel:
• Nonimmigrants under the Executive Order
– If you are a national of one of the designated countries and you are currently in the United States in nonimmigrant status (e.g., B, F, J, H, O, TN, etc.), we advice against any travel outside the United States.
– If you are not a national of one of the designated countries and you are currently in the United States in nonimmigrant status it is advised that you do not engage in non-emergency travel at this time and seek the advice of an immigration attorney before you travel.
• Lawful permanent residents under the Executive Order
– The exception for lawful permanent residents will likely apply only to lawful permanent residents who are returning to the United States with a valid Green Card, having already acquired lawful permanent residence before they departed the United States.
– It is likely that the exception will not apply to people who are not already lawful permanent residents, like individuals who only have an immigrant visa in their passport but who had not entered the United States on that immigrant visa prior to the signing of the Executive Order, or to adjustment of status applicants who are traveling on an advance parole document or H-1B visa.
– Lawful permanent residents from designated countries who are physically present in the United States should refrain from traveling outside the country until CBP provides explicit guidance on their ability to reenter.
– Lawful permanent residents from designated countries who must travel should be aware that they will likely be referred to secondary inspection upon returning to the United States and subject to enhanced screening.
– If you are a lawful permanent resident from one of the designated countries and you are currently outside of the country, upon returning to the United States CBP officials may encourage you to relinquish your lawful permanent resident status by signing a Form I-407, Record of Abandonment of Lawful Permanent Resident Status. Do not to sign any forms before consulting with counsel.
– If you are a lawful permanent resident and are not from one of the designated countries it is advised that you do not engage in non-emergency travel at this time and seek the advice of an immigration attorney before you travel.
– If you have to travel outside the United States we suggest that you carry a copy of a signed Form G-28 (Notice of Entry of Appearance as Attorney or Accredited Representative), along with a legal opinion letter specifying the basis for reentry into the United States. Also, seek the advice of an immigration attorney before you travel.
– If you are not a United States citizen and you are travelling within the United States it is advised that you carry your state issued identification document, green card (if applicable) and passport.
According to CBP since the Executive Order was issued, 721 individuals were recommended for denial from boarding, 1059 legal permanent waivers were issued and 75 visa holders were granted waivers. There have also been multiple reports that despite the emergency stay that was issued CBP continue to detain individuals for hours.
Please be advised that the rules referred to above may change at any time without notice. We will be updating our website with the latest – www.ahluwalialaw.com.