D&S Immigration Update Regarding Trump Administration's Revised Executive Order: "Protecting the Nation from Foreign Terrorist Entry into the United States"

President Trump has issued a revised version of his judicially-suspended January 27, 2017 Executive Order (EO) titled "Protecting the Nation from Foreign Terrorist Entry into the United States". The newly-issued order revokes the earlier EO and will go into *effect at 12:01 am on March 16, 2017. Among other changes, the new Order removes Iraq from the list of banned countries and expressly exempts from the 90-day ban visa holders, those lawfully present in the U.S., and lawful permanent residents from the six (6) designated countries. Additionally, in an apparent effort to avoid the widespread confusion and implementation difficulties faced following the issuance of the previous order, the new version is accompanied by a fact sheet and a Q&A provided by the Department of Homeland Security (DHS).

The major provisions of the rewritten Executive Order are summarized below:

1.    90-Day Ban on Entry for foreign nationals from Sudan, Syria, Iran, Libya, Somalia, and Yemen

Starting on March 16, 2017, the effective date of the revised Executive Order, nationals of the above-mentioned 6 countries who were not present in the U.S. or did not have a valid visa at the time of the original EO’s issuance on January 27, 2017 will not be permitted to enter the United States.

While the previous order also banned entry for foreign nationals from Iraq, as a result of  increased information sharing between the government of Iraq and the U.S. Department of State, Iraq has been removed from the list of banned countries. Iraqi citizens remain subject to the normal immigration processing requirements. The EO notes, however, that “decisions about issuance of visas or granting admission to Iraqi nationals should be subjected to additional scrutiny to determine if applicants have connections with ISIS or other terrorist organizations, or otherwise pose a risk to either national security or public safety.”

The EO also clarifies that the travel ban does not apply to the following individuals who are citizens or nationals of one of the 6 designated countries:

  • U.S. Lawful permanent residents (green card holders);
  • Foreign nationals who were admitted to the United States after the effective date of the initial January 27th EO and who are currently present in the U.S.;
  • Individuals with a travel document that is valid on the effective date of the order or any date thereafter which permits travel to the United States (e.g., a visa stamp or advance parole document);
  • Dual nationals, when traveling on a passport issued by a non-designated country;
  • Foreign nationals traveling on diplomatic, NATO, C-2 for travel to the United Nations, G-1, G-2, G-3, or G-4 visas;
  • Individuals already granted asylum or refugee status in the United States before the effective date of the order;
  • Visa holders whose visas were provisionally revoked solely as a result of the enforcement of the prior EO; and
  • Individuals holding valid F, M, or J visas.

The EO confirms that DHS and the Department of State retain the discretionary authority to issue visas or allow the entry of nationals of these 6 countries into the United States when such individuals can demonstrate that the denial of entry would cause them undue hardship, that their entry would not pose a threat to national security, and that their entry would be in the national interest. These determinations will be made on a case-by-case basis.

In addition, the EO confirms that no currently valid visas will be revoked solely as a result of the new EO and that individuals from one of the 6 designated countries who are currently in the U.S. and in possession of a valid, multiple entry visa on the effective date of the order remain eligible to travel and be readmitted to the U.S. provided they meet the normal immigration processing requirements.

USCIS has confirmed that it will continue to adjudicate Applications for Naturalization (Form N-400) and Applications to Register Permanent Residence or Adjust Status (Form I-485) and grant citizenship or permanent resident status to nationals of one of the 6 designated countries consistent with existing practices.

2.    120 Day Suspension of Refugee Admissions

The current EO once again suspends the U.S. Refugee Admissions Program (USRAP) for 120 days in order to allow DHS to review current screening procedures but permits the Secretary of State and the Secretary of Homeland Security to jointly grant waivers on a case-by-case basis when in the national interest to do so. Refugees who have already been formally scheduled for transit by the State Department are not included in this suspension.

The order further specifies that, upon resumption of the USRAP, refugee admissions to the United States will be limited to 50,000 for the remainder of fiscal year 2017, which is significantly lower than the 110,000 cap set by the Obama administration.

*UPDATE: A federal judge in Hawaii has blocked the new EO, preventing it from taking effect nationwide.