Travel Warning for Trumpland

The Executive Orders signed during the week of 20 January 2017 by Donald Trump will impact US visa processing and admissions to the United States.

FEBRUARY 9, 2017 ALERT (from AILA): On February 9, 2017, the Ninth Circuit Court of Appeals, in a per curiam order, denied the federal government’s motion for an emergency stay, finding that it failed to show a likelihood of success on the merits of its appeal, and that it also failed to show that the lack of a stay would cause irreparable injury. Therefore, until further action by a court, the order barring implementation of the travel and refugee ban remains in place, and all individuals may apply for visas and admission to the United States without regard to nationality. In terms of next steps, the U.S. District Court for the Western District of Washington has ordered all briefing associated with Plaintiffs’ motion for preliminary injunction to be completed by Friday, February 17, 2017. A hearing on the preliminary injunction has not yet been scheduled. In the meantime, the federal government could seek Supreme Court intervention though five of the current 8 justices would need to vote to overturn the panel decision. 


Previous Alerts:

FEBRUARY 4, 2017 ALERT: On February 3, 2017, the United States District Court for the Western District of Washington issued a temporary restraining order, prohibiting the federal government from enforcing Sections 3(c) [90-day travel ban on “immigrants and nonimmigrants” from designated countries], 5(a) [120-day ban on U.S. refugee program], 5(b) [prioritization of certain refugee claims], 5(c) [indefinite suspension of Syrian refugee admissions], and 5(e) [case-by-case refugee admissions] of the January 27, 2017 Executive Order on a nationwide basis. All U.S. land and air ports of entry are prohibited from enforcing these portions of the EO until further order from the court. DOS: DOS has confirmed that assuming there are no other issues in the case, provisionally revoked visas have been reversed and are once again valid for travel. CBP: All CBP Field Offices have been instructed to immediately resume inspection of travelers under standard policies and procedures. All airlines and terminal operators have been notified to permit boarding of all passengers without regard to nationality. AILA has also confirmed with CBP that individuals who arrived last weekend and had their visas physically cancelled as a result of the EO will not need to reapply for a new visa and absent any other admissibility issues will receive an I-193 waiver (Application for Waiver of Passport and/or Visa) upon arrival to the U.S. For those traveling by air, airlines have been instructed to contact CBP to receive authorization to permit boarding. 

 

On 30 January 2017 the US Embassy in London posted additional guidance at https://uk.usembassy.gov/updated-guidance-executive-order-protecting-nation-terrorist-attacks-foreign-nationals/:

Updated Guidance on Executive Order on Protecting the Nation from Terrorist Attacks by Foreign Nationals

On January 27, 2017, President Trump signed an Executive Order temporarily suspending entry into the United States of foreign nationals from seven countries under section 212(f) of the Immigration and Nationality Act. Under the Executive Order, to allow for proper review and establishment of standards to prevent terrorist or criminal infiltration by foreign nationals, the Executive Order imposes on nationals of certain designated countries a 90-day bar on entry into the United States. This bar also includes a 90-day prohibition on visa issuance. These countries, as designated by Congress or the Secretary of Homeland Security, are: Iraq, Syria, Sudan, Iran, Somalia, Libya, and Yemen.

Beginning January 27, 2017, travelers who have nationality or dual nationality of one of these countries will not be permitted for 90 days to enter the United States or be issued an immigrant or nonimmigrant visa. Those nationals or dual nationals holding valid immigrant or nonimmigrant visas will not be permitted to enter the United States during this period. Visa interviews will generally not be scheduled for nationals of these countries during this period.

Dual nationals of the United Kingdom and one of these countries are exempt from the Executive Order when travelling on a valid United Kingdom passport and U.S. visa. Additionally, those who have indefinite leave to remain in the United Kingdom and hold nationality of one of these countries are eligible to apply for U.S. visas.


The American Immigration Lawyers Association continues to monitor this situation.  Below, is a recent Practice Advisory:

Practice Alert: Travel Warning for Nationals of Certain Countries Designated by Executive Order

AILA Doc. No. 17012670 | Dated January 26, 2017

Updates

January 28, 2017:

  • AILA has received clarification that DHS is currently implementing the travel ban. This was confirmed in media reports, as well.
  • The Executive Order applies to Legal Permanent Residents (LPRs), as well as all other individuals who are "from" designated countries, including nonimmigrants and refugees. It applies to individuals who are dual nationals. It does not apply to people who merely traveled to designated countries.
  • There appears to be some limited discretion for DHS to admit LPRs on a case-by-case basis, and following a thorough security review.

On January 27, 2017, President Trump signed an Executive Order relating to visa issuance, screening procedures, and refugees. The Executive Order is titled "Protecting the Nation from Foreign Terrorist Entry Into the United States." (AILA Doc. No. 17012560) For more information on this and other anticipated or signed Executive Actions, please see AILA's website, Immigration 2017 - A New President and Congress. (AILA Doc. No. 16113030)

Among other provisions, Section 3 of the Executive Order, "suspends" the immigrant and nonimmigrant entry of nationals from certain designated countries for 90 days from the date of the order. Designated countries are those identified in INA §217(a)(12) and later added to the list of countries with Visa Waiver restrictions and would therefore include Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. Note that INA §217(a)(12) includes restrictions on people who travel to the designated countries, as well. It does not appear that the Executive Order is meant to encompass these individuals; however, it is not completely clear.

The order also does not define what it means to be "from" a designated country. Thus, in an abundance of caution, it may be best to interpret the term broadly to include passport holders, citizens, nationals, dual nationals, etc. Additionally, after 90 days, travel is not automatically reinstated. Instead, DHS is required to report whether countries have provided information "needed … for the adjudication of any … benefit under the INA … to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat." If not, the country would have 60 days to comply, or the travel ban would become indefinite.

Attorneys should consider advising clients who might be affected by the Executive Order to refrain from traveling outside of the United States. AILA has reached out to CBP for information on how they are currently handling the entry of individuals from designated countries, and will update this practice alert with additional information as soon as it is available (see list of updates). Please note that the situation is fluid, and may change at any time.

This practice alert is not legal advice. Attorneys and clients should discuss and make decisions based on their individual circumstances. There are many additional questions raised by the Executive Order, and we will continue to release information and analysis as it becomes available.

Cite as AILA Doc. No. 17012670.


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