Worldwide: Executive Order Suspends The Admission Of Certain Immigrants And Nonimmigrants From Seven Countries And The U.S. Refugee Admissions Program

Key Points  

  • Effective January 27, 2017, an Executive Order (EO) signed by President Trump suspends the visa issuance and entry to the United States for several categories of non-citizens:
    • all refugees, irrespective of the country of origin, for a period of at least 120 days
    • all Syrian refugees, indefinitely, subject to certain exceptions on a case-by-case basis when in the national interest of the United States
    • all immigrants and nonimmigrants from seven "countries of particular concern": Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen.
  • The EO has been partially stayed by a federal judge in New York: deportation has been stayed for individuals who would have been lawfully admissible prior to the EO and who have already arrived in the United States, but the court's order does not mandate their admission to the United States.
  • The possibility of inconsistent interpretation of the EO has created uncertainty in the admission process for individuals returning to the United States who are not U.S. citizens, particularly for those who have traveled to countries of concern while abroad. This includes company personnel returning to the United States pursuant to visas that have already been approved by the U.S. government.
  • At least one foreign country (Iran) has reacted by declaring that it will impose reciprocal restrictions on entry of U.S. citizens.


On January 27, 2017, President Trump announced restrictions on entry to the United States by several categories of non-citizens. The EO titled "Protecting the Nation from Foreign Terrorist Entry into the United States" cites authority vested in the President under the U.S. Constitution, the Immigration and Nationality Act (INA), and the national security objective "to protect the American people from terrorist attacks by foreign nationals admitted to the United States." The EO contains 11 sections. This analysis focuses on two of those sections: Section 3, which addresses the suspension of visas and other immigration benefits for countries of particular concern, and Section 5, which addresses the suspension of the U.S. Refugee Admissions Program (USRAP).

The EO has been partially stayed by several federal courts. The Department of Homeland Security (DHS) has announced that it will no longer enforce it against lawful permanent residents in the absence of "significant derogatory information indicating a serious threat to public safety and welfare," but questions remain on its application to those non-citizens who have already arrived in the United States, as well as dual nationals and those who have visited the seven countries in question in recent years.

The EO represents a significant change in U.S. immigration policy and is likely to have major implications for U.S. and non-U.S. companies that conduct business in the seven countries of concern or have employees from those countries on nonimmigrant visas (H-1B, L-1, O-1, etc.). Businesses should assess the potential impact on their operations, while taking into account that the situation is changing quickly and the exact application of the EO is evolving.

Visa and Entry Suspension (Section 3)

The key sentence on the suspension of visas and entry to the United States is contained in Section 3(c) of the EO:

[P]ursuant to section Section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12) would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas).

INA 212(f), codified at 8 USC 1182(f), is a pre-existing law that gives the President broad authority to suspend entry or impose restrictions on the entry of "any aliens or a class of aliens" for such period as he shall deem necessary if their entry would be detrimental to the interests of the United States.

Under U.S. law, the term "immigrant" means "every alien except an alien who is within one of the [enumerated] classes of nonimmigrant aliens." INA 101(a)(15), 8 U.S.C. 1101(a)(15). This encompasses non-citizens who intend to reside in the United States permanently, including lawful permanent residents (known as "green card holders" or LPRs). Conversely, a nonimmigrant is a non-citizen who does not intend to reside in the United States permanently and is present in the country temporarily. Classes of nonimmigrants are enumerated in INA 101(a)(15), 8 U.S.C. 1101(a)(15), and include foreign workers, students, visitors, diplomatic personnel, and other categories of temporary visitors.

The countries explicitly identified in 8 U.S.C. 1187(a)(12)—Iraq and Syria—were originally included in the Terrorist Travel Prevention Act of 2015. That provision allows the Secretary of State or DHS Secretary to identify additional countries as "countries of concern" and thus covered by that provision. As of the signing of the Terrorist Travel Prevention Act of 2015, Iran and Sudan had already been designated by DHS as "countries of concern," and, two months later, DHS identified Libya, Somalia and Yemen as governments that have repeatedly provided support to acts of international terrorism and are, therefore, "countries of concern" covered by this provision. The DHS press release is available here.

8 U.S.C. 1187(a)(12) is a pre-existing law that restricts individuals from participating in the Visa Waiver Program (VWP) if they have traveled to those countries since March 1, 2011. The VWP governs the admission of visitors from 38 countries who are not required to obtain a U.S. visa prior to arriving to the United States for business or pleasure. It is unclear what it means to be "from" a country under the EO, but it likely includes citizens and nationals of one of those countries (i.e., those holding a passport of one of those countries).

Dual U.S. and foreign country citizens are exempt from the suspension of entry due to their U.S. citizenship. However, DHS has not provided an official clarification on whether dual citizens who hold a passport of one of the seven countries, as well as a passport of another country (e.g., a dual Iranian and French citizen), are subject to the suspension.

As mentioned above, the term "immigrants" encompasses U.S. lawful permanent residents, or green card holders. On its face, the EO applies to immigrants and nonimmigrants equally, so green card holders who are citizens or nationals of the seven countries of concern should be covered by the entry suspension. On January 29, DHS issued a press release titled "DHS Statement On Compliance With Court Orders And The President's Executive Order," where it reiterated DHS Secretary John Kelly's earlier statement that "the entry of lawful permanent residents is in the national interest" and that "absent 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." This means that LPRs who are citizens or nationals of the countries of concern can board planes for the United States and will likely be admitted to the country after questioning, absent Customs and Border Protection's (CBP) determination that they present a serious threat to public safety and welfare.

CBP may also interpret the EO to say that "from countries" means that the non-citizens' travel originates in those countries, no matter what their citizenship or nationality is. Again, since the signing of the EO, CBP has questioned travelers who have traveled to one of the seven countries. The White House has confirmed in media interviews that those "traveling back and forth [to the designated countries] ... [are] going to be subjected to further screening." The EO is also unclear as to its application to someone who is not a citizen or national of the countries of concern, but has traveled to one of them. Since the signing of the EO, CBP has questioned those (including U.S. citizens) who have traveled to one of the seven countries, even if they were not citizens or nationals of those countries.

Visa Program Report and Lifting the Suspension

It is noteworthy that, after 90 days, the entry suspension is not automatically lifted.  Rather:

  • The EO also requires DHS to specify what kind of information it needs from any country (not just the seven countries of concern) regarding an applicant for an immigration benefit, "to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat," and to determine which countries do, and do not, provide such information.
  • Within 30 days of January 27, 2017, DHS (in consultation with the Department of State and the Director of National Intelligence) must submit to the President a report on the results of the review, including DHS's determination of the information needed for adjudications and a list of countries that do not provide adequate information.
  • If DHS determines that a country does not provide such information, that country will be informed that it has 60 days to begin providing it.
  • If, after the 60-day period, the country does not begin providing such information, under Section 3(e) of the EO, it will be included in a future proclamation under INA 212(f) that would render citizens and nationals of that country ineligible for entry until such time as the country begins providing the requested information. This process could also expand the list beyond the seven countries of concern. By the same token, after the initial 90 days, any country on the original list of seven could possibly be removed from the list if it begins providing the information requested by DHS.

Refugee Suspension (Section 5)

The EO suspends the USRAP for 120 days. During that time, the EO mandates that the DHS Secretary, in consultation with the Director of National Intelligence, identify "additional procedures [that] should be taken to ensure that those approved for refugee admission do not pose a threat to the security and welfare of the United States," and implement such additional provisions. The USRAP is to be resumed after 120 days for only the countries where "such additional procedures are adequate to ensure the security and welfare of the United States."

The entry of Syrian refugees is suspended indefinitely, subject to exceptions on a case-by-case basis, at the discretion of the Secretary of State and DHS Secretary, but only if those exceptions are in the national interest of the United States, including "when the person is a religious minority in his country of nationality facing religious persecution, when admitting the person would enable the United States to conform its conduct to a pre-existing international agreement, or when the person is already in transit and denying admission would cause undue hardship — and it would not pose a risk to the security or welfare of the United States."

Finally, the number of refugees permitted to enter the United States in fiscal year 2017 has been reduced from the current level of 110,000 to 50,000.

Questions and Uncertainties Going Forward

In addition to the fundamental question of "who is covered" by these rules, discussed above, there remain a number of considerations for individuals, companies and other organizations attempting to plan staffing, hiring and international travel in the coming days as a result of this new EO:

  • Legal Challenges. Legal challenges have already been made to several provisions of the EO. On January 28, the District Court for the Eastern District of New York stayed the implementation of the EO as it applies to those citizens and nationals of the seven countries, as well as refugees, who have already arrived in the United States, but the stay does not order CBP to admit those individuals to the United States. Other federal courts have made similar rulings invalidating some provisions of the EO, including a ruling by a federal judge in Massachusetts disallowing the detention of those subject to the entry suspension and a ruling by a federal court in Virginia ordering CBP to allow permanent residents access to their attorneys. All of the rulings so far have been granted on an emergency basis and are temporary, and the courts will consider the validity of the EO in later proceedings.
  • Possible Expansion of the Suspension. INA 217(a)(12) leaves open the designation of other countries, so the list of seven countries could be expanded on that basis as well.
  • Waiver of Entry Suspension. Section 3(g) of the EO provides for the following "waiver" of the 3(c) or eventual 3(e) entry suspensions:

Section 3(g): Notwithstanding a suspension pursuant to subsection (c) of this section or pursuant to a Presidential proclamation described in subsection (e) of this section, the Secretaries of State and Homeland Security may, on a case-by-case basis, and when in the national interest, issue visas or other immigration benefits to nationals of countries for which visas and benefits are otherwise blocked.

It is not clear what the mechanism for requesting such a waiver would be or what factors DHS or the Department of State (DOS) would consider to determine that a waiver would be "in the national interest" of the United States.

  • Visa Issuance. There have been reports that U.S. Embassies and Consulates have received instructions to immediately suspend the issuance of immigrant and nonimmigrant visas for anyone subject to the EO. Additionally, visa interviews have been canceled for affected individuals.
  • Adjudication of Immigration Benefits. It is unclear what impact the EO will have on adjudication of immigration benefits, including green card ("adjustment of status") applications, naturalization applications, applications to change or extend nonimmigrant status, applications for employment authorization and advance parole travel documents, as well as applications for Temporary Protected Status. The EO directs suspension of the "issuance of visas and other immigration benefits," so the presumption is that the U.S. Citizenship and Immigration Services (USCIS) will suspend the processing of the applications filed by citizens and nationals of the countries of concern.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Morgan Lewis
Duane Morris LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Morgan Lewis
Duane Morris LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions