By David Rugendorf and Benjamin Lau
On January 27, 2017, President Trump signed an Executive Order that provided the following:
- Suspends nonimmigrants (persons coming temporarily to the United States) from designated countries from entry to the United States for a period of up to ninety (90) days from the date of the order (January 27, 2017). At this time, the designated countries are Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. Additional countries may be added. This prohibition does not apply to foreign nationals traveling on diplomatic visas, NATO visas, and United Nations visas. It is unclear if the Executive Order applies only to (1) individuals who hold passports from the designated countries, or if it also applies to (2) foreign nationals who were born in the designated countries, but who are citizens of other, non-designated countries or who are dual nationals, or (3) whose parents were born or hold citizenship from the designated countries. However, according to the Wall Street Journal, the State Department will announce that dual nationals are subject to the ban. For example, a dual national of Iraq and the United Kingdom would be denied entry, even if the dual national travels on a UK passport.
- Allows for the entry of permanent residents (green card holders) from the affected countries on a case-by-case basis. Initially the order suspended the entry of permanent residents, but the administration later decided that the entry of permanent residents is in the national interest. Permanent residents from these countries will be subject to a Department of Homeland Security determination as to whether entry will be permitted. Accordingly, such individuals should expect to encounter significant delays at U.S. consular posts or ports of entry while this determination is being made.
- Suspends for 120 days the US Refugee Admissions Program, subject to case by case exceptions for national security or undue hardship grounds. Halted the processing of Syrian refugees indefinitely, until the President determines that the admission of Syrian refugees would be “in the national interest”.
- Orders the Secretary of Homeland Security and the Secretary of State to determine what information is required to make security determinations that are the basis of the visa adjudications process, and to determine which countries do not currently provide this information. Countries in violation would then be given 60 days to supply the requested information necessary to adjudicate visa applications by its foreign nationals. Countries that do not comply within the 60 day period may be added to a Presidential proclamation that would prohibit the entry of foreign nationals from these countries. It is unclear which countries may be included in this prohibition.
- The Executive Order also suspends the Visa Interview Waiver Program and requires that ALL individuals seeking a nonimmigrant visa at a U.S. Embassy or Consulate abroad to undergo an in-person interview. Although the name sounds similar, this is NOT the 90 day Visa Waiver Program that allows individuals from certain countries to register (ESTA) and travel to the US without visas. It pertains to visa interviews, and not travel without a visa. This action may increase interview wait times and process times at U.S. Embassies and consulates overseas.
As of the evening of January 28, 2017, a federal judge has issued a stay of the order. However, the stay is limited only to persons detained at airports or in transit at the time the order was signed. It does not affect enforcement of the ban going forward. The situation appears very fluid and may change at any time.
Based on what we know at the moment of publication, this is the current state of affairs. Please note, however, that this order is subject to modification, whether through presidential action, congressional legislation, agency determination or court order. Please exercise caution in any international travel, as changes may occur. MSK’s immigration department is pleased to handle any questions you may have regarding this order and its potential effect on the rights of individuals to travel to and remain in the United States.