United States: Executive Order On Immigration – "Protecting The Nation From Terrorist Attacks By Foreign Nationals"

Impact on Foreign Nationals Seeking Admission to the United States, Visa Issuance & Refugees

BREAKING NEWS: President Donald J. Trump has fired acting Attorney General, Sally Yates, after Yates instructed Justice Department attorneys not to enforce President Trump's ban on refugees and certain foreign nationals.

SUMMARY:

  • Suspend entry to the United States for nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen, for 90 days.
    *NOTE:  U.S. Lawful Permanent Residents who are nationals of the designated countries will be  subject to lengthy interviews and delays at secondary inspection units at U.S. ports of entry.
  • Suspend the Visa Interview Waiver Program, requiring visa interviews for  visa applicants, regardless of nationality, including those renewing their visas. 
  • Establish requirements for additional screening procedures for adjudication of applications for ALL immigration benefits. 
  • Suspend the entry of all refugees for a period of 120 days while 'extreme vetting' procedures are developed.
  • Permanently bar the entry of Syrian refugees to the United States.

On January 27, 2017, President Donald J. Trump issued an Executive Order (EO) entitled "Protecting the Nation from Foreign Terrorist Entry into the United States." The EO was effective immediately and impacts entry to the United States for immigration and non-immigrants from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.

The EO also suspends the Visa Interview Waiver Program, which was widely utilized by a number of U.S. Consular Posts to expedite visa renewals for common non-immigrant visa categories (H, O, non-blanket L, F, M, J). This will create an immediate and substantial increase in wait times for non-immigrant visa appointments worldwide. Foreign national employees in the U.S. who are planning trips abroad with the intention of renewing visa stamps are advised to plan ahead for substantial delays, and consider postponing travels plans for the foreseeable future if at all possible.

Key elements of the EO include:

  • Ban on Entry to the United States for Individuals from Designated Countries of Concern: Temporary suspension of non-immigrant and immigrant visa issuance and entry into the United States for 90 days for all foreign nationals traveling on passports from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen. The Department of Homeland Security (DHS) announced on January 29th that while U.S. Lawful Permanent Residents (LPR) are subject to the travel ban, they will be permitted to enter the country unless there is significant evidence that they are a threat to public safety and welfare.

    *Note: Although this is the current administration policy with regard to LPRs, there have been numerous reports that DHS is not uniformly complying with this directive. If you are an LPR planning on traveling abroad or outside of the country attempting to enter, we urge you to contact the Lewis Brisbois immigration team for guidance prior to your trip.
  • All travelers, including U.S. citizens and LPRs, may experience increased scrutiny when seeking to enter the United States if they are dual nationals of or have recently traveled to one of the impacted countries.
     
  • During the temporary suspension, U.S. national security agencies are tasked with developing enhanced vetting procedures for issuance of visas and admissions to the United States, as well as the adjudication of any other immigration benefit, which will require compliance from all foreign governments within 60 days of notification. Foreign nationals of countries that do not comply will be prohibited from entry into the United States indefinitely.
     
  • Suspension of Visa Interview Waiver Program: All individuals seeking a non-immigrant visa must now undergo an in-person interview, with the exception of certain exempted individuals. The Visa Interview Waiver Program was previously used to waive the interview requirement for travelers who had already been vetted and determined to be a low security risk and who had a demonstrated track record of stable employment and stable travel. This program contributed to decreased visa interview wait times worldwide while conserving limited consular resources.

    *Note: The Visa Interview Waiver Program is different from the "Visa Waiver Program", which facilitates travel without the requirement of a visa by nationals of certain countries. The EO does NOT affect the Visa Waiver Program.
     
  • Uniform Immigration Benefits Screening: Development of additional uniform screening standards and procedures for all immigration benefits designed to identify fraud and intent to cause harm. This may include a process to evaluate an applicant's "likelihood of becoming a positive contributing member of society" and their "ability to make contributions to the national interest."
     
  • Refugee Admissions: Suspension of the U.S. Refugee Admissions Program for 120 days, with resumption only for nationals of countries for whom it is determined that sufficient vetting is in place. Refugee processing and admission for Syrian nationals is suspended indefinitely. Priority given to refugees on the basis of religious-based persecution provided that they are a minority religion in their country of nationality. Places limit of 50,000 refugee admissions for FY 2017. Case-by-case exceptions to this policy are possible if in the national interest.
     
  • Additional elements include: Expedited completion and implementation of the Biometric Entry-Exit system; Review of all visa reciprocity agreements, and regular publication of information relating to terrorism and gender-based violence involving foreign-born individuals in the United States. 

Although the travel ban is in effect, the situation remains fluid as the Trump administration continues to develop guidance regarding which individuals may be affected. In response to multiple lawsuits filed by several civil rights organizations immediately following the signing of the EO, federal courts throughout the country have issued limited stays of certain aspects of the EO, although it is still unclear whether DHS is complying. Implementation of the EO by DHS has been inconsistent due to the high level of uncertainty regarding its applicability. Meanwhile, the Department of State (DOS) has cancelled interviews and halted issuance of all visas to individuals subject to the EO.

There have been numerous credible reports of U.S. Customs and Border Protection (CBP) officers pressuring returning LPRs to abandon their status at ports of entry throughout the country. Subject to the advice of a qualified immigration attorney, LPRs should NOT abandon their status nor sign Form I-407 if asked to do so by a CBP officer.

U.S.-based foreign nationals and lawful permanent residents are encouraged to contact their Lewis Brisbois Immigration Counsel with questions regarding visa issuance and international travel.

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.

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