Last updated March 16, 2017
The Executive Order (EO) of March 6 replaced the President’s earlier EO of January 27 (EO 13769) which had become the subject of much litigation and controversy. The new EO – which is discussed in detail below – was to go into effect on March 16.
On March 15, the U.S. District Court for the District of Hawai’i granted a Temporary Restraining Order (TRO) against the government’s implementation of this latest travel ban. This TRO is nationwide and effectively stops the administration from enforcing the ban on visa issuance, admissions to the U.S., and halt in refugee processing.
Immediately below is a discussion of the March 6 EO and its key provisions as they are written. Because of the Hawai’i court’s TRO, for the moment, affected individuals may continue to travel and seek admission to the United States, although possibly with close scrutiny on arrival and with great caution given the temporary nature of a TRO.
For individual advice or to know how this Executive Order may impact you, we advise that you consult with an immigration attorney.
What are the key points of this Executive Order?
President Trump signed this new Executive Order (EO) on Monday, March 6, 2017. It has an effective date of March 16, 2017, at which time the earlier travel ban will be revoked. On March 15, a U.S. District Court issued a TRO, nationwide, which prevents the government from implementing the Executive Order.
Like the earlier ban, this EO imposes restrictions on visa issuance and entry (admission) to the United States of individuals from certain identified countries, namely Iran, Libya, Somalia, Sudan, Syria, and Yemen as well as all refugees, in order to “protect [US] citizens from terrorist attacks, including those committed by foreign nationals.” To this end, it temporarily suspends visa issuance and admission of certain individuals and proposes to undertake a review and improvement of the “screening and vetting protocols and procedures associated with the visa-issuance process and the US Refugee Admission Program.” This new Executive Order, however, significantly curtails the government’s ability to restrict the ability of citizens from impacted countries to travel to the United States.
Among the EO’s key provisions are the following:
- A 90 day ban on the issuance of US visas to and entry to the United States of certain individuals from six (6) designated countries – Iran, Libya, Somalia, Sudan, Syria, and Yemen.
- An immediate review and assessment by the US Department of Homeland Security (DHS), the Department of State (DOS) and the Director of National Intelligence of visa and admission screening and vetting procedures, including the possibility of adding and/or removing countries to the designated list.
- The suspension of the US Refugee Admissions Program (USRAP) for 120 days from the date of the order, or until July 14, 2017.
- Reducing the number of refugees allowed into the United States for fiscal year 2017 to 50,000 and to halt “any entries in excess of that number until such time as [the President] determines that allowing more refugees would be in the “national interest.”
- The implementation of “uniform screening standards for all immigration programs” such as more “in person” interviews and changes to immigration forms.
- Requiring all individuals who need visas to apply for them in-person at US consulates, rather than allowing “mail-in” or drop-box applications, with certain limited exceptions.
- Clarifying that revocation of a visa because of the earlier EO should not be a reason to deny that person admission to the United States.
The Scope and Impact of the Ban on Visa Issuance
Which countries are covered by this ban on visas for and admission to the United States?
This EO bans the issuance of visas and entry into the United States of certain individuals from Iran, Libya, Somalia, Sudan, Syria, and Yemen. It eliminates the earlier ban on certain individuals from Iraq.
The ban also halts the admission of all refugees for 120 days from the date of the EO, or until July 14, 2017, regardless of the country of origin.
Why these particular countries?
Unlike the earlier order, this EO provides the administration’s reasoning for the inclusion of the six (6) named countries, the nationals of which – according to the EO – “continue to present heightened risks to the security of the United States.”
Why not Iraq?
Iraq is referred to as a “special case” due to the “close cooperative relationship between the United States and Iraq.” According to the EO, Iraqis will still be subject to “additional scrutiny” in the visa application process.
Who is covered under this new EO?
Unlike the earlier EO’s vague and inconsistent language, this EO takes steps to clarify who is covered and what exceptions apply.
The ban applies to individuals from the designated countries who:
- are outside the U.S. on March 16, 2017;
- did not have a valid visa as of January 27, 2017 at 5 PM (i.e., the date of the earlier EO), and,
- do not have a valid visa on the effective date of this new EO (i.e., on March 16).
Presumably this means that if an individual managed to obtain a visa sometime between January 27 and March 16, that person would not be covered by this EO.
Are there any exceptions to the travel ban effective March 16, 2017? Among nationals of the designated countries, who is not affected by the travel ban?
The EO clearly states that it will not apply to all individuals from the designated countries. There are certain enumerated exceptions; the ban does NOT apply to the following individuals:
- Lawful permanent residents;
- Anyone who is admitted or paroled into the United States on or after March 16, 2017;
- Anyone who has a document other than a visa which is valid on March 16 or issued after that date, that permits the individual to travel to the United States and seek entry or admission, “such as an advance parole document;”
- Dual nationals of a designated country and a non-designated country if traveling on a passport from the non-designated country;
- Those traveling on diplomatic-type visas (e.g., A visas), NATO visas, C-2 visa for travel to the United Nations, or G-1, G-2, G-3 or G-4 visas;
- Anyone granted asylum or a refugee who has already been admitted to the U.S., or anyone granted withholding or removal, advance parole, or Convention Against Torture (CAT) protection.
Can an individual request a “waiver” of the travel ban’s restrictions?
Yes, waivers may be available. The EO allows DHS and DOS to issue a visa or allow admission on a “case by case basis” if certain conditions are met. These “waivers” may be granted in the government’s discretion if the individual can show that (1) denying entry during the period of the ban would cause undue hardship, (2) that the person’s entry would not pose a threat to national security, and (3) entry would be in the national interest.
The EO does not provide specific guidance on how to request this waiver from CBP or a consular officer. Currently, the ban is for 90 days and thus, as a practical matter, it may prove challenging for some individuals to show that there would be “undue hardship” if they cannot get a waiver and enter before the ban expires. Of course, it is possible – and indeed likely in the case of some countries – that the ban will continue beyond this initial 90 day period.
While the EO does not define “undue hardship” or the other terms, it does provide some examples of circumstances that might warrant a waiver for individuals:
- those who have previously been admitted to the US for work, study or other “long term” activity but who happen to be outside the US on the EO’s effective date of March 16 and are seeking to return for the same purposes, if denying reentry “during the suspension period” would impair that activity;
- who have “previously established significant contacts with the US” but who are outside the US on March 16 for “work, study, or other lawful activity.”
- those who wish to travel to the US for business if denial of entry would “impair those [business] obligations”;
- those who seek to visit or reside with a close family member who is a US citizen, permanent resident or someone in the US in valid nonimmigrant visa status where denial of entry would cause “undue hardship”;
- infants, young children or adoptees, those who need urgent medical care, or those whose entry is “otherwise justified by special circumstances”;
- those who have been employed by or on behalf of the US government and can document having provided “faithful and valuable service” to the government;
- those who are traveling for purposes related to a certain international organizations, or to conduct business with the US Government;
- those who are Landed Immigrants in Canada and who apply for a visa at a US consulate in Canada;
- those who are US Government-sponsored J-1 exchange visitors.
Is the waiver only valid for one entry? What if an individual wants to travel to the United States again?
The EO states that a waiver issued by a US consulate will be effective both for the issuance of that visa and for “any subsequent entry on that visa.” Keep in mind that for some countries, a visa may be “single” entry and that therefore, these individuals will need to seek new visas and waivers each time they wish to travel to the United States while the ban is in effect.
How is the DOS – through its embassies and consulates – implementing the ban on visas?
The ban applies to individuals who are “outside” the United States and will impact those individuals from designated countries who seek to apply for a nonimmigrant (temporary) or immigrant visa at a US consulate. Those who are in the immigrant visa process either at the National Visa Center or the US consulate may expect a delay or halt in processing, as DOS will not be able to issue the immigrant visa, unless the person qualifies for a waiver of the travel ban.
While the EO does not provide details, presumably consulates will develop procedures to identify affected individuals and a process whereby those individuals may request a waiver as outlined above, for seeking nonimmigrant or immigrant visas.
How will immigration at the airports (CBP) deal with the ban?
CBP can refuse admission to any traveler found to be inadmissible to the United States.
For any affected individuals whose earlier visas may have been canceled or revoked after the January EO, this fact alone should not make them inadmissible or prevent CBP from allowing them to enter the United States. Of course, CBP can and will review other possible grounds of inadmissibility, including questions about a person’s travel history particularly those who have traveled to one or more of the designated countries.
Does the ban apply to someone who has just traveled to a designated country?
No. Unless the individual is a national of a designated country, the ban does not apply solely because he or she has visited one or more of the six (6) countries. Travel to one of these countries however may increase the likelihood of being questioned by CBP about the nature of the visit – why the person was in the country, for how long, etc., as already provided for in the December 2015 Visa Waiver Program Improvement and Terrorist Travel Prevention Act . Such individuals may be placed in secondary inspection on arrival at a US airport so that CBP may question them about the purpose and nature of such travel.
Can individuals affected by the ban travel outside the United States?
Individuals who are affected by this ban must understand that if they depart the United States during the 90 day period, they will most likely not be able to return. Anyone impacted by the ban should consult with an immigration attorney before leaving the United States.
What about individuals who are outside the United States and want to return?
Individuals who are outside the United States and who are impacted by the travel ban should consult with an immigration attorney to see whether they may qualify for a waiver that would permit them to obtain a visa and entry to the United States.
How will the EO affect applications pending before the US Citizenship and Immigration Services (USCIS)?
The EO does not appear to prohibit the receipt or review of applications or petitions for immigration benefits by DHS/USCIS. Indeed, it specifically states that its restrictions apply to those who are “outside” the United States as of March 16, 2017. Therefore, this should mean that USCIS will continue to review and adjudicate applications and petitions for individuals of the designated countries, for example, nonimmigrant petitions including extensions; employment authorization document (EAD/work permit) applications, adjustment of status applications, asylum applications, etc.
How long could the ban be in place? Might the ban be longer than 90 days?
The ban is in place for 90 days from its effective date, or until June 14, 2017. During this time, DHS is required to report on its review of the screening and vetting procedures, including whether other countries have provided sufficient information to assist in determining whether an individual may pose a security or public-safety threat. Presumably if certain countries do not provide such information or it is found inadequate, the country will remain on the list.
Will the ban be extended to include other countries?
The EO describes a review period during which time DHS and DOS will conduct a “worldwide review to identify whether, and if so what, additional information will be needed from each foreign country to adjudicate an application … to determine that the individual is not a security or public safety treat.” As a result of this review, the agencies are to submit a list of countries recommended for inclusion on the list, as well as those for removal. This certainly leaves open the possibility and even likelihood of additional countries being included in the ban, should the other countries either not cooperate or not provide information deemed to be adequate by the US government.
Suspension Of The US Refugee Admissions Program (USRAP)
Who is affected by the suspension of the USRAP?
All refugees being processed abroad and seeking admission to the United States are impacted. This new EO no longer singles out Syrian refugees for an indefinite ban.
How long is the suspension of USRAP?
The USRAP is suspended for 120 days or until July 14, 2017.
Once the temporary suspension is lifted, how many refugees will be let in to the United States?
The EO states that DOS and DHS may only admit 50,000 refugees for fiscal year 2017 (after the suspension is lifted). This represents a more than 50% reduction in the number of refugee admissions. This numerical restriction will last until the president determines that additional entries would be in the national interest.
Are there any exceptions to this ban on refugee admissions?
The refugee ban does not apply to those who were formally scheduled for transit to the United States before March 16.
Individual refugees may be able to qualify for a waiver of the ban on a “case-by-case” basis, as described above in the discussion on waivers generally.
Elimination of Mailed-In Visa Applications Or The “Drop-Box” Application
The EO eliminates the ability of some individuals who need visas to apply for their visas at US consulate without an in-person interview. Previously, some individuals - due to age, or the fact that they were repeat applicants - could mail-in their passports to the US consulate or use a “drop-box” system when applying for a visa. This visa interview waiver program has been suspended with limited exceptions. The EO specifically notes that those applying for diplomatic visas, NATO visas, C-2 visas to travel to the United Nations and G-1-, G-2, G-3 and G-4 visas are not impacted by this change.
At this time, it is not yet clear how DOS will implement this change and whether waivers of the in-person visa interview might still be possible for certain applicants. Anyone who previously used the mail-in or drop-box process should contact the consulate or speak with an immigration attorney to determine whether they might continue to apply in this manner.
The impact of this change may be significant, imposing increased burdens on consular staff, longer wait times to schedule visa appointments, and longer waits for individuals to receive their passports and visas back from the consulate. US employers who await the arrival or return of employees may also be negatively impacted given these anticipated slowdowns in the process to obtain US visas.
Does this change the Visa Waiver Program or ESTA?
No. The “visa interview waiver program” is different from the Visa Waiver Program (VWP) which allows citizens of 38 named countries to travel to the United States (see). The VWP is still in effect. Citizens of most Western European countries, and others (e.g., Australia, New Zealand, Japan, Singapore) may still seek admission to the United States on the basis of their passports and an ESTA clearance.
Legal Challenges to the EO
While this latest EO provides more guidance and rationale than the January 27th order, there are certain to be legal challenges to its restrictions in the days to come. We will post updates on any significant legal actions and their impact as they develop.