On March 6, 2017, President Trump signed a new Executive Order entitled, “Protecting the Nation from Foreign Terrorist Entry to the United States”. This new Order narrows the scope of the initial travel ban issued on January 27, 2016, which caused immediate federal litigation that resulted in a nationwide temporary restraining order issued by a District Court in Seattle, Washington and affirmed by the Ninth Circuit Court of Appeals.
The new Order, which becomes effective on March 16, 2017, places a ban on travel to the United States for a period of 90 days for foreign nationals from Sudan, Syria, Iran, Libya, Somalia and Yemen who are outside of the United States on the effective date, do not currently have a valid visa on the effective date, and did not have a valid visa at 5:00 p.m. eastern standard time on January 27, 2017. The 90-day period was apparently put into place to allow the U.S. government time to review and establish standards designed to prevent entry by individuals with terrorist or criminal backgrounds. It should be noted that citizens of Iraq are not part of this new Order even though Iraq was included in the original travel ban. The Administration has stated that this is because Iraq has agreed to cooperate with the United States with respect to increased vetting of visa applicants.
In addition to the travel ban, the new Order also suspends the Refugee Admissions Program for a period of 120 days to allow the U.S. government to review screening procedures. Once the 120 days has expired, the Order goes on to state that refugee admissions to the U.S. will not exceed 50,000 for fiscal year 2017.
The new Order is written in a way to try to decrease the wide-spread confusion that occurred after the issuance of the original travel ban. For instance, the new Order specifically states that U.S. lawful permanent residents, a.k.a, green card holders, are not included. Foreign nationals from one of the designated 6 countries who have valid travel documents as of the date of the Order also are not barred from seeking admission to the U.S. Unlike the original travel ban, valid visas will not be revoked solely on the basis of the new Order. Additionally, dual citizens who travel on a passport issued by a non-designated country are not impacted.
The Order also grants discretion, to be used on a case-by-case basis, to the Department of Homeland Security and Department of State to waive the consequences of the travel ban. This authority to waive is reserved for cases where a foreign national can prove that the denial of admission to the United States would cause undue hardship, that the entry would not pose a threat to national security, and that the entry would further the national interest.
The full consequences of this new Order remain to be seen. Speculation has been that lawsuits may again successfully block the Administration’s second attempt to ban travel to the United States from the designated countries. However, if the Order remains in place, best practice is for individuals from the designated 6 – Sudan, Syria, Iran, Libya, Somalia, and Yemen – to exercise extreme caution with respect to international travel and to contact competent immigration counsel for advice on all visa related issues.
The Immigration team at Barclay Damon, LLP is ready to help. We will continue to closely monitor this new development and report on any issues that may impact our clients.