United States: New Travel Ban Executive Order

On March 6, 2017, President Trump signed a new executive order, "Protecting The Nation From Foreign Terrorist Entry Into The United States." The accompanying Department of Homeland Fact Sheet  states: 

"In order to ensure that the U.S. Government can conduct a thorough and comprehensive analysis of the national security risks posed from our immigration system, the Executive Order imposes a 90-day suspension of entry to the United States of nationals of certain designated countries—countries that were designated by Congress and the Obama Administration as posing national security risks with respect to visa-free travel to the United States under the Visa Waiver Program.

The U.S. Government must ensure that those entering this country will not harm the American people after entering, and that they do not bear malicious intent toward the United States and its people. The Executive Order, together with the Presidential Memorandum, protects the United States from countries compromised by terrorism and ensures a more rigorous vetting process. This Executive Order ensures that we have a functional immigration system that safeguards our national security.

This Executive Order, as well as EO 13767 and EO 13768, provide the Department of Homeland Security (DHS) with additional resources, tools, and personnel to carry out the critical work of securing our borders, enforcing the immigration laws of our Nation, and ensuring that individuals from certain designated countries who pose a threat to national security or public safety cannot enter or remain in our country. Protecting the American people is the highest priority of our government and this Department."

The effect of this Order:

"For the next 90 days, foreign nationals from Sudan, Syria, Iran, Libya, Somalia, and Yemen who are outside the United States on the effective date of the order, do not currently have a valid visa on the effective date of this order, and did not have a valid visa at 5:00 eastern standard time on January 27, 2017, are not eligible to travel to the United States. The 90-day period will allow for proper review and establishment of standards to prevent terrorist or criminal infiltration by foreign nationals."

Note: this Order "does not apply to certain individuals, such as lawful permanent residents of the United States; foreign nationals admitted to the United States after the effective date of the order; individuals with a document that is valid on the effective date of the order or any date thereafter which permits travel to the United States; dual nationals when travelling 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; and individuals already granted asylum or refugee status in the United States before the effective date of the order."

Another significant change from the prior executive order banning travel from predominantly Muslim countries includes the following: "DHS and the Department of State have the discretionary authority, on a case-by-case basis, to issue visas or allow the entry of nationals of these six countries into the United States when a national from one of the countries demonstrates that the denial of entry would cause undue hardship, that his or her entry would not pose a threat to national security, and that his or her entry would be in the national interest."

The Order also stated that "the Refugee Admission Program will be temporarily suspended for the next 120 days," and when it resumes, "refugee admissions ... will not exceed 50,000 for fiscal year 2017.  This Order does not affect "those refugees ... already ... formally scheduled for transit" during this 120-day period.

Other important items to note from the Fact Sheet:

The Department of Homeland Security, in conjunction with the Department of State, the Office of the Director of National Intelligence, and the Department of Justice, will develop uniform screening standards for all immigration programs government-wide as appropriate and in the national interest.

The Secretary of Homeland Security will expedite the completion and implementation of a biometric entry-exit system for all in-scope travelers entering and departing the United States.

As part of a broader set of government actions, the Secretary of State will review all nonimmigrant visa reciprocity agreements to ensure that they are, with respect to each visa classification, truly reciprocal.

The Department of State will restrict the Visa Interview Waiver Program and require additional nonimmigrant visa applicants to undergo an in-person interview.

If you have any questions regarding this Alert, including questions about travel eligibility or visa processing in the wake of this executive order, please contact any of the attorneys in the Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.

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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