On March 6, 2017, President Trump issued an updated executive order “Protecting The Nation From Foreign Terrorist Entry Into The United States.” Although similar in many material respects to the original order issued on January 27 (Executive Order 13769), this updated version appears to be narrower in focus and drafted with greater clarity following previous litigation. Further, unlike the previous order, it will not take effect immediately but will go into effect on March 16, 2017. Some key provisions are as follows:
The new order suspends entry of nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen for 90 days. The original order had included Iraq in this list, however, the new order recognizes that “Iraq presents a special case” and will be “subject to additional scrutiny” given the country’s involvement in fighting ISIS and role with the U.S. military.
This suspension is subject to the following applicability and exceptions:
- The travel ban applies only to foreign nationals of the designated countries who 1) are outside the United States on the effective date; 2) did not have a valid visa at 5:00 p.m., Eastern Standard Time on January 27, 2017; and 3) do not have a valid visa on the effective date.
- The order does not apply to:
- Lawful permanent residents;
- Any foreign national who is admitted to or paroled into the United States on or after the effective date;
- Individuals who have travel documents other than visas, valid on the effective date of the order or issued on any date thereafter, such as an advance parole document;
- Dual nationals travelling on a passport of a nonaffected country;
- Certain diplomatic visas; and
- Individuals granted asylum; any refugee who has already been admitted to the United States; or any individual who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture.
Further, case-by-case waivers are available. The executive order includes appropriate scenarios for a waiver including:
- Those seeking readmission to the U.S. for long-term activities such as employment or studies and that readmission would impair such activities;
- Individuals with significant contacts with the U.S., but the individual is outside the country on the effective date due to work, study, or other lawful activities;
- Those seeking to enter the U.S. for “significant business or professional obligations” and the denial of entry during the suspension period would impair such obligations;
- Foreign nationals seeking to enter to visit or reside with close family members that are U.S. Citizens, Green Card Holders, or admitted in nonimmigrant status and that denial of entry during the suspension period would cause “undue hardship”;
- Infants, young children, adoptees, those needing medical care and others “whose entry is otherwise justified by the special circumstances of the case”;
- Former U.S. government employees, with proof of such employment;
- Those traveling for purposes related to an international organization designated under the International Organizations Immunities Act (IOIA), or traveling to conduct business on behalf of an international organization not designated under the IOIA;
- Permanent residents of Canada that apply for a visa at a location within Canada; or
- United States Government-sponsored exchange visitors.
UNIFORM SCREENING AND VETTING PROGRAMS
The Department of State, Attorney General, Department of Homeland Security, and the Director of National Intelligence are to implement a program, as part of the process for adjudications, to identify individuals who seek to enter the United States “on a fraudulent basis, who support terrorism, violent extremism, acts of violence toward any group or class of people within the United States, or who present a risk of causing harm subsequent to their entry.”
REFUGEE SUSPENSIONS AND LIMITATIONS
The U.S. Refugee Admissions Program is to again be suspended for 120 days while various government agencies review screening and current procedures. Exceptions exist where the Secretary of State and the Secretary of Homeland Security jointly determine to admit as refugees on a case-by-case basis, in their discretion, but only so long as they determine that the entry of such individuals as refugees is in the national interest and does not pose a threat to the security or welfare of the United States. Further, only 50,000 refugees may be admitted in Fiscal Year 2017.
VISA INTERVIEW WAIVER PROGRAM SUSPENSION
All foreign nationals to be traveling on visas, except for some in certain diplomatic statuses, must participate in a visa interview. Note: This provision does NOT affect the Visa Waiver Program itself or visa-free admissions to Canadians, Bermudians, and certain Bahamian travelers.
Importantly, visas issued before the effective date of the new order will not be revoked. All individuals holding visas marked revoked or cancelled as a result of the previous order shall be entitled to a travel document confirming that the individual is permitted to travel to the United States and seek entry.
If you have any questions regarding the applicability of this executive order, please contact us today.