United States: Executive Order Restricting Immigration From Certain Countries

Last Updated: February 8 2017
Article by Duane Morris

On January 27, 2017, President Trump signed an Executive Order entitled "Protecting the Nation From Terrorist Entry Into the United States by Foreign Nationals."  The Order has immediate consequences for many foreign nationals who are living and working in the U.S., those preparing to travel to the U.S. and those who are outside of the U.S. at the time of the signing of the Order. 

Ban on Entry of Nationals of Seven Countries

The Order places an immediate, 90-day ban to entry and suspends visa issuance for nationals of Iraq, Iran, Syria, Yemen, Libya, Somalia and Sudan.  This includes nationals who have become citizens of countries other than their birth countries.  It also includes green card holders. The Order gives the secretaries of State and Homeland Security the authority to issue visas or other immigration benefits, including entry into the U.S., on a case-by case basis and when it is in the "national interest." According to a press release issued on January 29, 2017 by the Secretary of the Department of Homeland Security, the entry of green card holders is deemed to be "in the national interest," and they would be permitted to enter the U.S. absent derogatory information indicating a serious threat to the public safety and welfare of the U.S.  They will be treated on a case-by-case basis.

During this suspension period, the president has directed the Department of Homeland Security to "determine the information needed from any country for adjudication of any visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat." The order further directs the DHS and Secretary of State's office to submit to the president a list of countries recommended for inclusion on a presidential proclamation that would prohibit the entry of foreign nationals from those countries that do not provide the information requested to comply with the Order. This means that other countries may be added.

Suspension of the Visa Interview Waiver Program (VIWP)

All applicants seeking a visa must undergo an in-person interview. The VIWP allowed for waivers of the interview for applicants seeking to renew nonimmigrant visas within 12 months of expiration of the initial visa in the same classification, for those under 14 and those over 79. The Order is effective immediately and will place enormous burdens on U.S. consulates and embassies. Delays are projected.

Suspension of U.S. Refugee Program

The order suspends the U.S. Refugee Admissions Program (USRAP) for 120 days except "refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual's country of nationality." During the suspension, no refugee admissions will be authorized. The Secretary of State and Secretary of Homeland Security are to use this time to determine additional procedures that should be taken to ensure refugee admissions do not pose a threat to national security. Applicants already in the USRAP process will be eligible for admission after satisfactorily complying with the revised procedures. At the end of the 120-day suspension period, admissions will resume only for nationals of countries where the Secretary of Homeland Security, the Secretary of State and the Director of National Intelligence have jointly determined that "sufficient safeguards are in place to ensure national security."

The USRAP program for Syrian refugees is on permanent suspension until such time the President feels appropriate changes have been made to the program to align with national interest.

EMPLOYER ACTIONS

Travel Advisory

Who is/is not affected

  1. Foreign nationals who hold citizenship or were born in any of the seven countries listed above are directly affected and should not schedule any non-essential international travel. This is true even if they already have a valid visa stamp or other pre-approved U.S. travel document (other than a green card – see #2).
  2. Lawful Permanent Residents of the U.S. (a/k/a Green Card holders) are not affected. However, clients and foreign nationals are reporting that green card holders and U.S. citizens with ties to the seven countries are still being denied entry or are being sent to secondary inspection. We, again, recommend that any non-essential international travel be postponed or cancelled.  We also caution that if there is an immediate need to travel abroad, green card holders entering the U.S. may still be subject to additional screenings and national security checks at the airport.   DHS has clarified that as long as the traveler does not have "significant derogatory information," such as a serious criminal history or links to terrorism, then that LPR traveler will be allowed entry to the U.S.
  3. Dual citizens of one of the seven affected countries and a country not part of the list may be affected. Recent reports from organizations other than DHS have indicated that dual citizens may be exempt from this ban. However, absent an official press release from DHS, we recommend that dual nationals holding citizenship from any of the seven affected countries refrain from traveling outside of the U.S.

Visa Stamping Abroad - Expect Significant Processing Delays

As part of his executive order, President Trump also suspended the Visa Interview Waiver Program (VIWP). This is not to be confused with the Visa Waiver Program, where nationals of certain countries can enter the U.S. without a visa stamp. The Visa Interview Waiver Program once permitted eligible foreign nationals seeking to renew their visa stamps to forgo the in-person interview process and simply drop their documents off at a designated drop box for review.

Following the suspension of the VIWP, all foreign nationals seeking a visa stamp will have to appear for in-person interviews at a U.S. consulate or embassy abroad, which will likely lead to significant delays both in obtaining appointments as well as visa issuance.

Employers should immediately caution any foreign nationals from the seven countries against travel outside of the U.S., even if the employee has a valid U.S. visa and is a citizen of a third country. Business travel is likely to be interrupted and companies should plan accordingly.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.

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