President Trump’s newly signed an Executive Order on February 6, 2017, entitled “Protecting the Nation from Foreign Terrorist Entry Into The United States” modifies and somewhat tempers his prior Executive Order on a similar topic. In order to correct the typos, faulty legal analysis, lack of justification, and failure of common sense in the prior Executive Order, this new Executive Order is four times longer the the one Trump signed on January 27, 2017, more than five weeks ago. The new Executive Order, has some immediate and some delayed effects on people traveling to the United States, but also has a long term impact on individuals with visas and permanent residence in the United States today, as well as severely, negatively impacting refugee admission into the United States.
First, this Order specifically restricts any and all visa-issuance for individuals from Syria, Yemen, Libya, Sudan and Somalia, and Iran, e.g. “Nationals of Countries of Particular Concern.” Iraq is now off the list because in 39 days, apparently, it has made sufficient efforts to “share” data with the US (what that is, no one actually knows), enough to calm the folks in Trump’s anti-immigrant circle (or perhaps it was the fear that Trump’s ill-advised January 27, 2017 EO was putting our troops at risk). The memo continues to state that additional countries could be included at a later date. Anyone who was issued a visa prior to January 28, 2017, can, apparently, travel freely to the from these six countries to and from the United States. Yet, what remains is that USCIS and the Department of State cannot grant lawful permanent residence, or issue approvals for status changes, or issue visas to people born in these countries for the duration of the Executive Order, likely for at least 90 days. In addition, this means that Customs and Border Protection cannot “admit” anyone into the United States traveling on an immigrant visa or any type of nonimmigrant visa for 90 days. The start day of this Executive Order is on March 16, 2017. The mad rush for visas and consular processing is now one.
Our Advice: If you are citizen of one of these six countries, make sure that you comply with the detailed exceptions outlined in the Executive Order. Travel from the U.S. to any other country MAY result in your inability to return to the US if you were born in one of these seven countries, regardless of what other passport or nationality you hold. Consult your KIP attorney with your questions about this.
Second, the Executive Order also halts, again, the resettlement of refugees in the U.S. for 120 days, giving the Trump Administration time to evaluate the efficacy of the security screening process. Further, Syrian refugees are no longer permanently barred from being part of the refugee program, once the program is restarted. Please note that this provision of the Executive Order, may be contrary to existing law. Certainly the reduction of refugees in FY2017 from 100,000 to 50,000 is contrary to existing law. If any part of this Executive Order is likely to be struck down, it is this.
Our Advise: If you have completed refugee processing travel to the US before March 16, 2017. If you or your loved one’s are stuck in this hold, you may have to repeat the entire background check process. While we do believe that the hold will be lifted in 120 days, President Trump has done an effective job of vilifying the most-vetted and most-vulnerable group of immigrants to America. There will be many court cases filed in the coming days. Please note that this ban does NOT affect pending Asylum cases. In specific matters, please consult your KIP Attorney.
Third, before travel for immigrant and nonimmigrant visa holders can be reinstated, the Department of Homeland Security is required to report whether these named countries have provided “information needed from each country for adjudications” by DHS/DOS. If not, the country would have 50 days to comply, or the travel ban would become indefinite.
Our Advice: This Executive Order gave Trump a chance to walk back a number of faults with his original order, including a ban on anyone from a third country who had traveled to one of these countries. We believe that while no longer explicitly mentioned in the ban, third country nationals who have traveled to one of these six countries, may face serious additional scrutiny by both consulates and CBP. Failure of these countries to comply may result in a permanent ban on visa issuance. We will post additional advice as information becomes available, but please watch for a permanent ban on travel from some of these countries later this year.
Fourth, if you are a lawful permanent resident (green card holder) or a dual citizen of the US and one of these countries, the Trump Administration and the Department of Homeland Security have now both said that you are to be admitted to the U.S. However, Lawful Permanent Residents should remain cautious of remaining outside the United States for more than 6 months in any 12 month period, and should be cognizant that traveling to tone of this six countries will result in increased scrutiny upon reentry to the United States. Even then, we need you to be patient and vigilant. There are reports of CBP trying to convince Lawful Permanent Residents to sign for an abandonment of their residence. DO NOT SIGN such a waiver. Request a hearing before an immigration judge, and ask to call you attorney.
Our Advice: For now, for individuals from these six countries (not the whole world), we recommend that you refrain from traveling outside of the United States if you are already here, or try to return to the United States as soon as possible if they are outside of the country. Consult your KIP attorney prior to traveling if you need case specific advice.
Fifth, in recent years some consulates have been waiving interviews for issuance of visa, from various countries around the world. This program has, once again, been suspended. Everyone who needs a visa will be required to attend an in-person interview.
Our Advise: Make sure your travel plans include enough time to obtain the visa prior to returning to the US, and do not travel if you do not have the necessary time. There will be lengthy delays in some countries, such as India and China. Consult your KIP attorney prior to traveling.
Sixth, the Trump Administration is going to complete the “Entry/Exit” control system authorized by Congress in 1996, but never funded. But, now, the time period is lengthened, at least for reports from DHS, to at least a year. To be clear, completion of this system will cost billions of dollars, the refitting of EVERY international airport in the United States to control for exits, new exit lanes and roads leaving the US, the hiring of thousands of new CBP officer (beyond the 5,000 Border Agents), and other massive infrastructure enhancements. NONE of this has been funded by Congress, ever.
Our Advice: Please don’t think this is happening tomorrow. An Entry/Exit system will make the US like every other country in the world that monitors departures from the country. That said, nothing can be done here without billions of dollars authorized by Congress, so don’t hold your breath for a working system for several years.
Understandably here are many questions being raised by the Executive Order, and we will continue to release information and analysis as more details becomes available. Please feel free to reach out with urgent questions to Charles Kuck at firstname.lastname@example.org or schedule an in-person or telephone appointment with one of our Immigration Attorneys.