On January 27, 2017, President Donald Trump signed an executive order suspending entry to the United States of foreign nationals from the following countries for a period of at least 90 days: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen (“affected countries”).
U.S. ports of entry began enforcing the executive order immediately. As such, many travelers becamesubject to this executive order while they were in transit to the United States. Upon arrival, these travelers were detained for possible deportation from airports nationwide. Detainees included those who had been through a thorough vetting process (such as non-immigrant visa holders and refugees) or in fact held U.S. permanent residency status. Various legal and advocacy groups went into action and successfully obtained emergency court orders from federal judges blocking the removal of certain detainees who held U.S. permanent residency status, approved refugee applications, and valid U.S. visas.
The U.S. Department of Homeland Security (DHS) issued a statement stating that while it will keep enforcing the president’s executive order, it will also “comply with the judicial orders.” We continue to evaluate the court orders and watch for updates. Until further notice, we advise that citizens of these seven countries not travel internationally as they still face a risk of being refused entry back into the United States upon return from any international travel.
Based on information that will be gathered by the State Department and the DHS over the 90-day period (which ends on April 27, 2017), the suspension may be extended or amended, due to the court orders, and additional countries could be added. It appears that individuals already present in the United States will not be affected, nor will individuals who have merely traveled to the affected countries.
Who Is Affected?
The order will affect anyone who is from the above-mentioned seven countries, including dual citizens. Permanent residents of the United States (“green card holders”) with affected country citizenship qualify for an exception to the executive order, but DHS has retained discretion to detain green card holders based on a security review of their case. Admission for green card holders is not guaranteed: they will be allowed to board planes to the United States, but subject to enhanced screening for “derogatory” information in their file which can be used to justify denial of entry. There are reports that enhanced screening includes questions about religious beliefs and political views, as well as requests for access to social media accounts. There have also been reports of green card holders being asked to relinquish their lawful permanent residence at ports of entry. Green card holders should never voluntarily abandon their residency or sign Form I-407 (Abandonment of LPR Status). The government has the heavy burden to show that residency has been abandoned, and green card holders should be admitted so they may have a hearing with a judge to determine whether residence has been abandoned. Green card holders should plan for delays when entering the United States to allow for possible additional screening. It has been reported that travelers in transit who are subject to the executive order may be considered for a “waiver” of the order where denial of entry would cause “undue hardship,” and where no “derogatory” information exists. These waivers may be considered for green card holders, refugees/asylees, individuals with a valid I-512 (EAD/AP card), and unaccompanied children.
Note that after the 90-day review of the policy, permission to travel for nationals of these countries will not be automatically reinstated. Affected countries will have 60 days to comply with any requests from the U.S. government to update or improve the quality of the information they provide regarding individuals who apply for U.S. immigration benefits. Additional countries may also be added to the ban, including, but not limited to, Afghanistan, Colombia, Egypt, Lebanon, Pakistan, Southern Philippines, The Sulu/Sulawesi Seas Littoral, Trans-Sahara (Mali), and Venezuela. Citizens of these countries need to also exercise caution in planning international travel. Suspension of Visa Interview Waiver Program In addition to the temporary admission ban, it is important for employers to know that the executive order also directs the State Department to suspend the Visa Interview Waiver program (that is, the dropbox programs at U.S. consulates), which had previously been available for renewing visas abroad. The dropbox program allows the renewal of visas without having to schedule a personal interview at the U.S. consulate. The elimination of this program will mean that many more applicants will now need to appear at U.S. consulates abroad in order to apply for their visas. As such, all individuals who need to renew their visas if traveling abroad should expect considerably longer wait times for appointments at consulates, and any travel plans should take into account additional processing times for visa issuance. Note that no appointments will be scheduled for and no visas will be issued to citizens of the affected countries.
Actions to Protect Foreign National Employees
Generally speaking, citizens of the affected countries, including dual citizens, should not travel internationally. Citizens of the countries that may be added to the executive order (listed above) should also exercise caution when considering international travel.
Dual nationals: There is conflicting information regarding the application of the executive order to individuals of the affected countries who are dual citizens. At the moment, the travel ban may apply to individuals who hold passports or were born in one of the affected countries, even if they also hold a passport from a non-affected country. We understand that both the United Kingdom and Canada have received assurances that dual citizens traveling on U.K. or Canadian passports would not be affected. Some airlines are also apparently allowing dual citizens to board and travel to the United States. However, until such time as we receive authoritative and reliable government confirmation to the contrary, dual citizens of the affected countries may be subject to the travel ban and should not travel.
Green card holders: It is recommended that green card holders from the affected countries exercise caution when considering travel. Green card holders qualify for an exception to the executive order, but reentry is not guaranteed and subject to case-by-case review. If there is reason to believe that negative discretionary factors may be present the green card holder should not travel. Under no circumstances should a green card holder give up their green card document, or sign any form admitting abandonment of their residency.
Citizens of affected countries with valid visas: Citizens and dual citizens of the affected countries with valid U.S. visas or asylum/refugee status should not travel internationally.
The Ogletree immigration team will continue to monitor developments with respect to President Trump’s executive orders regarding immigration, and will provide additional guidance as the situation evolves.
Before planning any international travel, please reach out to your Ogletree team members so we can discuss your options.
Please contact your Ogletree team members for additional questions or information.However, if you are detained at the airport or at the border by U.S. Customs & Border Patrol (CBP)officers, immediately call Maria Fernanda Gandarez at (917) 685-8081.
Compliments of Ogletree Deakins – a member of the EACCNY