President Trump’s New Travel Ban President Trump’s New Travel Ban

President Trump’s New Travel Ban

Following the 9th Circuit Court of Appeals’ nationwide suspension of President Trump’s most controversial Executive Order on immigration, the President has revoked the January 27th Order (Protecting the Nation Foreign Terrorist Entry into the United States) and issued a replacement order by the same name. The new order was signed by the President on March 6, 2017 and attempts to address concerns of the 9th Circuit and other district courts across the country. Unlike the original order, the new order has a delayed effective date of March 16, 2017 and identifies each of the affected countries as warranting additional scrutiny as state sponsors of terrorism or as having been “significantly compromised by terrorist organizations,” or containing “active conflict zones.” Essential elements of the new order include the following:
 
Temporary Suspension of Entry for Nationals of Countries of Particular Concern
The President’s Executive Order suspends entry into the United States of nationals of Iran, Libya, Somalia, Sudan, Syria and Yemen for ninety (90) days.[1] Importantly, the order applies only to those:

  1. physically present outside the U.S. on and after March 16, 2017
  2. who did not have a valid visa as of 5:00 p.m. EST on January 27, 2017
  3. who do not have a valid visa as of March 16, 2017.
 
Notably, exceptions to the suspension of entry are extended to lawful permanent residents (green card holders), foreign nationals admitted or paroled into the U.S. after March 16, 2017, those with special entry documents (i.e. advance parole), dual nationals entering on a passport issued by a non-designated country, certain diplomats, and approved asylees and refugees. Waivers may be available on a case by case basis if the foreign national can establish that (1) denying entry would cause undue hardship, (2) that the entry would not pose a national security threat AND (3) entry would be in the national interest. Specific examples of circumstances that may warrant the issuance of a waiver of the travel ban are also contained in the revised order. In any event, we continue to strongly recommend affected foreign nationals currently present in the U.S. avoid international travel for the duration of the travel suspension.
 
Global Review of Information Needed From All Foreign Countries
As before, the Executive Order also calls for a “worldwide review” of the information needed from each foreign country to adjudicate visas, admission and immigration benefits to determine the individual is not a security or public safety threat. A report from the Secretary of Homeland Security is due to the President within twenty (20) days of the effective date of the order. As in the original order, the report must be sent to the President with conclusions and a list of the countries that do not provide adequate information for immigration adjudications. Identified countries will be provided 50 days to start providing such information. After 50 days, a list of countries will be recommended for inclusion in a Presidential Proclamation prohibiting entry of foreign nationals from those countries that have not complied. At any point, more countries can be recommended for inclusion according to the order. Based on this, the suspension of visas and entries into the U.S. could be extended and expanded beyond foreign nationals from the initial six countries identified above.
 
Refugees
The new Executive Order suspends decisions on all refugee applications for 120 days after the effective date of the order and caps the total number of refugees at 50,000 for 2017. This revised order does not apply to those refugees formally scheduled for transit to the United States prior to the effective date. During this period, the U.S. Refugee Admission Program will be evaluated for national security threats. After the suspension, refugee applications will resume but ONLY for stateless persons and nationals of countries meeting any additional procedures for refugee application and adjudication. The indefinite ban on Syrian refugees has been removed but the net effect may be the same given the additional compliance matters and discretion of the President on these matters.
 
Additional measures related to uniform screening and vetting standards, completion of the biometric entry-exit tracking system, suspension of the visa interview waiver program and review of visa reciprocity agreements all remain largely unchanged from the original order. See our prior article on this topic for additional information on these measures. Please note, challenges have already been initiated against this new revised order, in addition to the countless lawsuits still pending against the now rescinded order.
 
For additional information regarding the President’s Executive Orders on immigration or any other immigration-related questions, please contact Jenifer M. Brown, Christl Glier or another member of the Immigration practice.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.


[1] Please note, Iraq was included in the President’s original order but has now been formally removed from the list of banned countries. The new order justifies the removal of Iraq from the list as a result of the “close cooperation between the US and the democratically elected Iraqi government, the strong U.S. diplomatic presence in Iraq, significant presence of U.S. forces in Iraq and Iraq’s commitment to combat ISIS.” It also references improvements made to Iraq’s “travel documentation, information sharing, and the return of Iraqi nationals subject to final orders of removal” from the U.S. Issuance of U.S. visas and entry to the U.S., however, may still be “subjected to additional scrutiny” to determine the individual’s connections to ISIS or other terrorist organizations or national security/ public safety concerns.

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