On Friday, February 3, 2017, a federal judge for the U.S. District Court for the Western District of Seattle (Washington State) issued a Temporary Restraining Order (TRO) against the government, effectively blocking key provisions of the Executive Order. This TRO is nationwide. While this judicial action stops the government from acting on the sections relating to visa issuance, travel and refugees, it is temporary and may be lifted after a full hearing by the court.
Immediately below is a discussion of the EO and its key provisions as they are written. Because of the Seattle 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 details, see “Update on Legal Challenges to the Executive Order” below
This situation continues to evolve.
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 an Executive Order (EO) the afternoon of Friday, January 27, 2017 which, according to its introduction, is intended to “protect Americans.” The EO became effective as of the date of signing. 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 anyone who is a national of one of seven (7) “designated” countries – Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.
- An immediate review by the US Department of Homeland Security (DHS) of the information needed from any country to adequately determine the identity of any individual seeking a visa, admission or other immigration benefit and that they are not “security or public-safety threat[s]. This report must be submitted within 30 days and must include a list of countries that do not provide adequate information.
- The suspension of the US Refugee Admissions Program (USRAP) for 120 days, and an indefinite suspension of all refugees from Syria.
- The implementation of “uniform screening standards for all immigration programs” including reinstituting “in person” interviews
- Requiring all individuals who need visas to apply for them in-person at US consulates, rather than allowing “mail-in” or drop-box applications
What Is An Executive Order? Can It Be Challenged?
Does the EO change the law or regulations?
While the president has the authority to issue such orders if the administration deems the action to be in the public interest, the EO does not change, replace or repeal existing statutes (laws) or regulations.
Legal challenges have already been made to provisions of the EO. Many believe that wide sweeping bans such as those on refugee admissions and visa issuance effectively discriminate against individuals on a religious basis, as all the countries are predominantly Muslim.
On Saturday, January 28, US federal judge Ann Donnelly of the U.S. District Court for the Eastern District of New York in Brooklyn issued an emergency “stay” that temporarily blocks the government from sending people out of the country after they have landed at a U.S. airport with valid visas including green card holders. Several other federal courts have issued similar stays. For advice on how these court actions might apply in a particular case, the affected individual should consult with an immigration attorney.
The 90-Day Travel Ban
What exactly does the 90-day ban prohibit?
The ban halts visa issuance and entry to the United States for affected individuals.
The US Department of State’s (DOS) consulates around the world are not permitted to issue visas to individuals who are nationals of a designated country. Consulates will deny pending visa applications of any individuals who fall within the scope of the EO – both nonimmigrant (temporary) visas, such as Bs, Fs, H-1Bs, etc. and immigrant visas for those seeking to become US permanent residents.
US Customs and Border Protection (CBP) officers at border crossings, US airports and pre-flight inspection at certain foreign airports are not permitted to admit individuals who are nationals of designated countries or allow them to enter the United States, even if they have a facially valid visa or a green card.
Note that the government has since clarified that exceptions will apply to permanent residents who do not pose a threat to national security and to dual nationals (of a designated country and a non-designated country) who present a passport from a non-designated country.
Who is affected by the 90-day ban?
As written, this ban applies to nationals of the seven (7) designated countries – Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. As noted above, and below in sections on permanent residents and dual nationals, certain exceptions may apply.
What does it mean to be a “national”?
A national is a citizen of a particular country, someone entitled to hold the country’s passport. This encompasses someone born in the country or who is a citizen of the country. This may include individuals who were not born in the country but whose parents were, if such parentage entitles them to citizenship in that country. For example, someone born in Germany but whose parents were born in Iran, may be considered an Iranian under Iranian law, and therefore may be considered subject to the ban.
Does the ban include “dual” nationals? What if the individual was born in one of the 7 countries but is now a citizen of another country (e.g., Canada) and only holds that passport?
The EO, as written, does appear to include those born in one of the designated countries even if they do not currently hold a passport from that country or no longer consider themselves a citizen of that country. Keep in mind that “country of birth” is listed on permanent resident cards and is usually listed on one’s passport and that CBP and DOS consular officers review these documents. At this time, however, the two government agencies most involved in reviewing the applicability of the EO have provided the following clarifications on this important issue:
- The DOS has posted an advisory on its website which states that the EO “does not restrict the travel of dual nationals from any country with a valid U.S. visa in a passport of an unrestricted country.” The advisory goes on to explain that embassies and consulates will continue to issue nonimmigrant and immigrant visas to such dual nationals who apply for their visas with a passport from an “unrestricted” country, “even if they hold dual national from one of the seven restricted countries.”
- DOS’s stance appears to be consistent with DHS’s statement of January 31 at DHS Secretary Kelly’s press conference on the travel ban or, as he described it, a “temporary pause” on visa issuance and admission. On the question of the impact of dual nationality, a DHS spokesperson has stated that the individual would be evaluated based upon the passport presented and not on his or her “dual national” status. Presumably, an individual presenting a passport from a non-designated country would not be impacted by the EO’s restrictions, even if he or she also holds nationality in a designated country.
Advisories posted on US embassy websites (e.g., in the UK, Canada and Australia) are consistent with this latest interpretation that the restriction does not apply to dual nationals who present a passport from a non-designated country. For example, the US embassy in London has stated on its website that “dual nationals of the United Kingdom and one of [the designated] countries are exempt from the Executive Order when travelling on a valid United Kingdom passport and U.S. visa.”
Does the ban include permanent residents (“green card” holders)?
Yes, the Executive Order as written does appear to ban the entry of affected lawful permanent residents (LPRs).
As discussed below in the question about “exceptions” to the ban, the EO does include a provision which allows the issuance of “visas or other immigration benefits” to affected individuals on a “case-by-case basis, and when in the national interest.” On Sunday, January 29, 2017, DHS Secretary John Kelly issued a statement, which attempts to clarify this provision as relates to lawful permanent residents. In this statement, Secretary Kelly announced that “I hereby deem the entry of lawful permanent residents to be in the national interest.” He further instructed that, “[a] bsent the receipt of significant derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status will be a dispositive factor in our case-by-case determinations.” Thus, it would seem that while the ban as written was broad enough to cover permanent residents, the administration has since narrowed the impact of the ban by allowing for an exception to its application for all permanent residents, provided that they are not found to be a “serious threat to public safety and welfare.” Notably, while certainly some activities or past history would clearly be considered a “serious threat,” we do not have clear guidance on what this term means. Permanent residents with an arrest or criminal history would be wise to consult with any immigration attorney before international travel.
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 7 countries. Travel to one of the 7 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 an affected individual still board a plane and try to enter upon arrival at a US airport?
In the days following the signing of the EO, there were countless reports of airlines refusing to board individuals who appeared to be affected by the ban. Airlines can be fined for boarding individuals who do not have proper documentation to enter the United States. Since the administration has clarified certain provisions of the ban – as they relate to permanent residents and dual nationals – airlines have had to adjust their procedures, although, understandably, there still may be some confusion. Before making any travel plans, individuals should consult with an immigration attorney for individual counsel and advice.
Should affected individuals 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. This caution may include any LPRs for whom there may be a concern with their entry being “a threat to public safety or welfare,” as this term is not fully defined. For example, any permanent residents with a criminal or arrest history should review their situation with an immigrant attorney before travel.
The temporary halt in enforcing portions of the ban could end at any time. We caution affected individuals not to rely on any court’s temporary “stay” or halt of its enforcement when making a decision to travel abroad.
What about individuals who are outside the United States and want to return?
Airlines may refuse to board anyone who appears to be affected by the ban. Anyone affected by the ban who is currently outside the United States should consult with an immigration attorney before attempting to return in order to understand the current state of affairs, the risks involved and to develop a strategy based upon his or her individual circumstances.
What will happen to those who are refused entry by CBP?
Individuals who are refused admission by CBP will be instructed to make arrangements to return on the next outbound flight to the destination from which they arrived. While waiting to return abroad, or for a decision on a waiver that would allow their entry (see below regarding exceptions to the ban), they will be held or detained by CBP. They will not necessarily be able to make phone calls or send emails or text messages. There is no right to an attorney for individuals who arrive at US airports or land ports-of-entry and seek admission to the United States. In practice, many CBP officers will agree to speak with lawyers representing such individuals. Keep in mind that CBP officers will be overwhelmed in the coming days in dealing with these arrivals and that it may be difficult – even for experienced immigration attorneys – to communicate quickly with CBP. Wherever possible, advance planning will be critical.
Are there any “exceptions” to the ban?
As of Saturday January 28, 2017, the U.S. District Court for the Eastern District of New York () issued an emergency stay of certain provisions of the EO. Thus, the US government is restrained from barring the admission of refugees seeking admission as part of the USRAP, holders of valid immigrant and nonimmigrant visas and other individuals from the 7 designated countries. This stay applies nationwide. Several other federal courts have since issued similar stays.
As noted in other parts of this FAQ, the EO as written permits DOS and DHS to issue visas, or other immigration benefits to affected individuals on a “case-by-case” basis and when in the “national interest.”
On Sunday, January 29, 2017, DHS Secretary John Kelly issued a statement, which attempts to clarify this provision as it relates to lawful permanent residents. In this statement, Secretary Kelly announced that “I hereby deem the entry of lawful permanent residents to be in the national interest.” He further instructed that, “[a]bsent the receipt of significant derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status will be a dispositive factor in our case-by-case determinations.” Thus, it would seem that while the ban as written was broad enough to cover permanent residents, the administration has since narrowed the impact of the ban by allowing for an exception to its application for all permanent residents, provided that they are not found to be a “serious threat to public safety and welfare.” Notably, while certainly some activities or past history would clearly be considered a “serious threat,” we do not have clear guidance on what this term means. Permanent residents with an arrest or criminal history would be wise to consult with any immigration attorney before international travel.
The administration also has clarified that the ban does not apply to those dual nationals who present a passport from a non-restircted or non-designated country. DOS and DHS have both issued public statements to this effect.
As written the EO states that the ban does not apply to those seeking A, G, NATO, C-2 and C-3 visas.
For others who are affected by the ban, it is not yet clear how requests for an exception or waiver “in the national interest” will be adjudicated or what factors the agencies will consider. Anyone seeking to make such a request is advised to consult with an immigration attorney in order to prepare a strategy and supporting documentation.
Can CBP detain individuals?
Individuals who are refused admission and who agree to return on an outbound flight will be detained or held by CBP until they can depart.
Immediately following the signing of the EO, there were many reports of CBP detaining LPRs notwithstanding the court cases and Secretary Kelly’s statement of January 29, 2017. Keep in mind that CBP will continue to review the admission of returning permanent residents to ensure that their entry does not pose a “serious threat to public safety and welfare.” If this review takes time, the individual will be detained in secondary inspection until the review is complete.
It is also possible that CBP may agree to defer the inspection of certain individuals, which means that CBP will give them an appointment to return to CBP at a later date to review their case. At this time, it is not known how CBP will be handling such situations; different CBP officers and airports may take different actions.
Any affected individual thinking of traveling to the United States should consult with an immigration attorney about their individual circumstances. The EO does not change the existing immigration law including the right to apply for asylum.
How are the US consulates implementing the ban on visas?
How is the DOS – through its embassies and consulates – implementing the ban on visas?
According to credible sources, the DOS issued a cable to all embassies and consular posts to suspend the issuance of nonimmigrant and immigrant visas for nationals of designated countries. The EO has an exception for nationals of the designated countries who are applying for A, G, NATO, C-2 and C-3 visas; presumably affected individuals seeking A, G, NATO, C-2 and C-3 visas may still apply for and expect to receive these visas, if otherwise eligible.
Consulates will stop scheduling and conducting interviews of affected individuals. They also will stop issuing (printing) visas for anyone who was already interviewed but who has not yet received the visa. Courier services will be instructed to return the un-adjudicated applications to the affected individuals. Consular posts are beginning to post alerts on their websites to advise individuals of the suspension of visa issuance “effective immediately and until further notification.” It is unclear whether DOS will refund visa fees (which are normally valid for one year), although refunds appear unlikely.
With regard to immigrant visas for those affected by the ban, the DOS will cancel currently scheduled interviews and will not schedule immigrant visa interviews for March or April.
Will existing visas be revoked or canceled?
In a statement issued by DOS Deputy Assistant Secretary Edward Ramotowski on January 27, 2017, the DOS “provisionally revoke[d] all valid nonimmigrant and immigrant visas of nationals| of the designated countries, except holders of A-1, A-2, G-1, G-2, G-3, G-4. NATO, C-2, “or certain diplomatic visas.” The statement noted that the revocation does not apply to visas which are “exempted” from the ban “on a case-by-case basis, and when in the national interest.” Thus anyone who qualifies for a waiver “in the national interest” who not have his or her visa revoked.
Affected individuals who are outside the United States and whose visas are now revoked must seek a “waiver” in the national interest. It is possible that CBP might consider an application for a waiver at a US port-of-entry or land border, however, the affected individual most likely would not be permitted to board an airline to come to the United States. Instead, those with provisionally revoked visas will need to apply for a new visa at a US consulate and request an exception to the ban or “waiver” by convincing the consular officer that issuance of the visa is “in the national interest.” The exact process for requesting such a waiver is not yet clear.
For affected individuals who are in the United States, the revocation does not mean that the individual is “out of status.” Rather, the individual’s period of admission continues to be controlled by the date or notation (e.g., D/S) on the I-94 admission record. Affected individuals with now-revoked visas should seek the advice of an immigration attorney before any international travel.
How will the EO affect applications pending before the US Citizenship and Immigration Services (USCIS)?
According to credible reports, including conversations with USCIS officers at local USCIS Field Offices, DHS leadership received email instructions following the EO to suspend the adjudication of immigration applications by affected individuals from any of the 7 designated countries. The Associate Director of Field Operations at USCIS apparently informed DHS employees that “effectively [sic] immediately and until additional guidance is received, you may not take final action on any petition or application where the applicant is a citizen of [one of the named countries] …Field offices may interview applicants for adjustment of status and other benefits according to current processing guidance and may process petitions and applications for individuals from these countries up to the point where a decision would be made. At that point, cases shall be placed on hold until further notice and will be shelved …Offices are not permitted [to] make any final decision on affected cases to include approval, denial, withdrawal, or revocation.” This directive indicated that further guidance would be forthcoming on naturalization (citizenship) applications “in the coming days.”
This hold on adjudications presumably includes asylum applications, adjustment of status applications (I-485) and applications for employment authorization documents (EADs, or work permits) (I-765), among others. While the directive appears to focus on applications pending at local USCIS Field Offices given its reference to “interviews,” it would be reasonable to assume that it also prohibits adjudications at the USCIS regional service centers where the agency normally reviews and adjudicates applications for other benefits, including adjustment of status applications, applications or petitions to change or extend nonimmigrant status, applications for employment authorization, advance parole travel documents, and applications for Temporary Protected Status (TPS).
What does the EO mean for the immigration status of someone who is in the United States?
The EO only impacts those who are applying for visas (nonimmigrant and immigrant), seeking entry, or actively applying for an immigration benefit (e.g., change or extension of status, adjustment to permanent resident, naturalization, and other benefits noted above). However, as noted above in the section about the DOS and visa revocation, affected individuals who are in the United States and whose visas have been provisionally revoked, must now seek new US visas and waivers of the EO’s ban “in the national interest” if they wish to return to the US after international travel.
Might the ban be longer than 90 days?
The EO states that the ban on visa issuance and entry is in place for 90 days. The ban, however, will not be lifted automatically at the end of the 90 days (which would be April 27, 2017). Instead, DHS is required to report whether countries have provided information “needed … for the adjudication of any … benefit under the INA … to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat.” If the country does not report or presumably if any such reporting is not found to be adequate, the country then would have 60 days to comply in providing such information or the travel ban would become indefinite.
Will the ban be extended to include other countries?
The EO’s call for a DHS report based, in part, on information provided by other countries that the US government says it needs to property review and vet individuals, appears to allow for DHS to recommend including additional countries in the ban, until they “comply” and provide the US government with information DHS is requesting of them. 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.
For most refugees, the suspension is at least 120 days. For Syrian refugees, the ban on admission is indeterminate. The EO states refugee processing and admission of Syrian refugees shall cease until such time as the President has determined that sufficient changes have been made to the program to ensure its alignment with the national interest. There is no further clarification of what may be deemed “sufficient” or “national interest.” This provision effectively eliminates the processing of refugees applications by and admission of Syrian refugees.
How long is the suspension of USRAP?
The USRAP is suspended for 120 days. During this time, the DOS and DHS are required to review the application and adjudication process to determine what additional procedures to take to ensure that refugees “do not pose a threat to the security and welfare of the United States” and to implement those procedures. After the 120 days, DOS can only resume refugee admissions for nationals of countries that are found to have sufficient safeguards to ensure security and welfare of the United States.
Are certain refugees or countries a priority?
The EO states that once the USRAP starts allowing refugees to enter, DOS is to prioritize refugees with religious-based claims, if the refugee’s religion is a minority religion in the individual’s country of nationality. The EO does not address the issue of sub-sects or minority groups within a country’s predominant religion.
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. If the suspension continues for more than 120 days, it is questionable whether the US will admit any refugees during the 2017 fiscal year.
Are there any exceptions to this ban on refugee admissions?
Yes. As mentioned above, as of Saturday January 28, 2017, the U.S. District Court for the Eastern District of New York issued an emergency stay of the EO. Thus, the US government is restrained from barring the admission of refugees seeking admission as part of the USRAP, holders of valid immigrant and nonimmigrant visas and other individuals from the 7 designated countries. This stay applies nationwide. Several other federal courts have issued similar stays.
The EO as written permits DOS and DHS to admit individuals as refugees on a case-by-case basis when in the national interest.
Even during the 120-day suspension period, the DOS and DHS may continue to process and admit refugees with religious-based claims, if the religion is a minority religion in the country of nationality.
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. It now appears that most individuals who need a US visa will be required to make an appointment at a US consulate and appear in-person for the visa interview. Before making travel plans, employers and individuals should check with the consulate or an immigration attorney for up-to-date information on the possibility of a mail-in application.
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 the Executive Order 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. 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.
On Saturday, January 28, US federal judge Ann Donnelly of the U.S. District Court for the Eastern District of New York in Brooklyn issued an emergency “stay” that temporarily blocks the government from sending people out of the country after they have landed at a U.S. airport with valid visas including green card holders. Several other federal courts – in Virginia, Boston, California – have heard similar cases and issued similar stays. On Friday, February 3, the federal court in Boston lifted a previously granted stay, and until the later action on the West Coast discussed below, this appeared to shut the door on those arriving at Boston’s Logan Airport.
On the afternoon of Friday, February 3 in Seattle, Washington (evening East coast time), US federal judge James L. Robart issued a temporary restraining order (TRO) which blocks – nationwide – key provisions of the EO, namely:
- The visa and entry ban against nationals of the designated countries at “all US borders and ports of entry”;
- The EO’s prioritization or preference for refugee claims from certain religious minorities;
- The halt on refugee admissions, including those from Syria.
- The EO’s exception for the admission of refugees on a case-by-case basis to the “extent that [this exception] purports to prioritize claims of certain religious minorities.”
The federal court in Seattle will hear from the plaintiffs and the government defendants on Monday in order to set a schedule for future hearings on the substance of the lawsuit which was brought by two states – Washington and Minnesota. These two states filed a motion asking for immediate judicial action against the harm already occurring to their residents because of the EO, and to block the EO’s most harmful provisions while they pursue a more permanent injunction of the implementation of these sections of the EO. Specifically noted in the order were the claimed negative consequences on the states’ residents’ in the areas of “employment, education, business, family relations, and freedom to travel.”
Notably, a federal court can only issue a TRO where the plaintiffs – in this case Washington and Minnesota – can show that they are likely to succeed on the merits of their case; that they are likely to suffer irreparable harm if the TRO is not granted; where the balance of equities tips in their favor; and where the court finds that an injunction or TRO is in the “public interest.” The TRO effectively allows for the status quo – or no change in the government’s actions – until the court has an opportunity to hear and make a decision on the actual case. As the EO is otherwise immediate in its impact, the TRO will effectively “pause” the situation, allowing for the entry of otherwise-affected individuals until the court can fully consider all the arguments by the plaintiffs and the government-defendants.
Interestingly, Judge Robart took the opportunity to affirm that the court is but one of three equal branches of government, whose role is to “ensur[e] that the actions taken by the other two branches comport with our country’s laws and more importantly, our Constitution.” The order concludes with the following explanation: “the court is mindful of the considerable impact its order may have on the parties before it, the executive branch of the government, and the country’s citizens and residents …[t]he court concludes that … it must intervene to fulfill its constitutional role in our tripartite government.”
This latest judicial action is yet but another indication of the complexity and seriousness of the situation, while also a vivid illustration of the careful and necessary balancing effect of the three branches of government on each other and on the country as a whole.
As these legal challenges work their way through various federal courts, affected individuals should consult with an immigration attorney for the latest information and guidance on how these court actions might apply in a particular case.