On January 27, 2017, President Trump issued an executive order entitled “Protecting the Nation from Foreign Terrorist Entry” (“January 27th Executive Order”), which was the subject of swift litigation in multiple jurisdictions around the country. Notably, on February 3, 2017, the United States District Court for the Western District of Washington issued a nationwide temporary restraining order prohibiting the federal government from enforcing certain sections of the January 27th Executive Order. This decision was upheld by the Ninth Circuit Court of Appeals, and the implementation of the January 27th Executive Order has been postponed since that time.
On March 6, 2017, the President signed a revised Executive Order with the same title, “Protecting the Nation from Foreign Terrorist Entry” (“March 6th Executive Order”), scheduled to take effect on March 16, 2017. The March 6th Executive Order expressly revokes the January 27th Executive Order as of March 16, 2017. Its content is very similar to that of the January 27th Executive Order with a several significant differences, including:
- Contains implementation date delayed by 10 days from issuance;
- Excludes Iraq from list of designated countries subject to travel ban;
- Exempts certain categories of people from travel ban, including lawful permanent residents, nonimmmigrants with valid visa stamps in their passports as of March 16, 2017, and foreign nationals with dual citizenship traveling on passports from countries not one of six designated countries subject to travel ban;
- Provides for some categorical exceptions and case-by-case waivers applicable to nationals of six designated countries subject to travel ban;
- Removes indefinite ban on Syrian refugees;
- Removes preference given to refugee applicants facing religious persecution who practice minority religions in their country of nationality;
- Exempts refugee applicants formally scheduled for travel by U.S. Department of State before March 16, 2017 from the 120-day refugee program suspension; and
- Provides for some case-by-case waivers applicable to refugee applicants subject to the 120-day refugee program suspension.
The March 6th Executive Order has also been the subject of litigation in multiple jurisdictions around the country was halted before its scheduled March 16, 2017 implementation by two temporary restraining orders from U.S. District Courts in Hawaii and Maryland. Appeals arising out of these two decisions are currently scheduled to take place before the Ninth Circuit Court of Appeals on May 15, 2017 and before the Fourth Circuit Court of Appeals on May 8, 2017. A detailed explanation of the litigation arising out of the March 6, 2017 Executive Order follows our summary of the order below.
Summary of the March 6, 2017 Executive Order “Protecting the Nation from Foreign Terrorist Entry into the United States”
Policy and Purpose
- Provides brief descriptions of some of the conditions in six of the previously designated countries (Iran, Libya, Somalia, Sudan, Syria and Yemen) that demonstrate why their nationals continue to present heightened risks to the security of the United States
- Provides a brief description of the conditions in Iraq, stating that it “presents a special case”
- Provides three examples of foreign nationals who have come to the U.S. through our immigration system and have proven to be national security threats
- Bans the entry of nonimmigrants (individuals coming to the U.S. temporarily) and immigrants (individuals coming to reside permanently in the U.S.) for at least 90 days for nationals of six designated countries: Iran, Libya, Somalia, Sudan, Syria and Yemen.
- Applies to foreign nationals of the six designated countries who:
- are outside the U.S. on 3/16/17;
- did not have a valid visa at 5pm EST on 1/27/17; AND
- do not have a valid visa on 3/16/17.
- Does NOT apply to:
- Lawful permanent residents (e.g. “green card” holders);
- Foreign nationals admitted or paroled into the U.S. on or after 3/16/17;
- Foreign nationals who have travel or admission documents to the U.S., other than a visa (i.e. advance parole), which are valid on or after 3/16/17;
- Dual nationals of one of the designated countries, who travel on a passport issued by a non-designated country;
- Foreign nationals traveling on diplomatic or diplomatic-type visas, NATO visas, C-2 visas for travel to the United Nations, or G-1, G-2, G-3, or G-4 visas;
- Foreign nationals who were granted asylum;
- Any refugee who was already admitted to the U.S.; OR
- Any individual granted withholding of removal, advance parole, or protection under the Convention Against Torture.
- Case-by-case waivers may be available if the foreign national has demonstrated to the officer’s satisfaction that:
- denying entry would cause undue hardship;
- his or her entry would not pose a threat to national security; AND
- would be in the national interest
- Enumerates illustrative examples of appropriate circumstances for case-by-case waivers:
- Foreign nationals who were previously admitted to the U.S. for a continuous period of work, study or other long-term activity, are outside the U.S. on 3/16/17, seek to re-enter the U.S. to resume that activity, and the denial of re-entry during the suspension period would impair that activity;
- Foreign nationals who have previously established significant contacts with the U.S. but are outside the U.S. on 3/16/17 due to work, study, or other lawful activity;
- Foreign nationals who seek to enter the U.S. for significant business or professional obligations, and the denial of re-entry during the suspension period would impair those obligations;
- Foreign nationals who seek to enter the U.S. to visit or reside with a close family member (e.g. spouse, child or parent) who is a U.S. citizen, lawful permanent resident, or foreign national lawfully admitted on a valid nonimmigrant visa, and the denial of entry during the suspension period would cause undue hardship;
- Foreign nationals who are infants, young children or adoptees, individuals needing urgent medical care, or someone whose entry is otherwise justified by the special circumstances of the case;
- Foreign nationals who have been employed by, or on behalf of, the U.S. government and the employee can document that he or she has provided faithful and valuable service to the U.S. government;
- Foreign nationals who are traveling for purposes related to an international organization designated under the International Organizations Immunities Act;
- Foreign nationals who are landed Canadian immigrants who apply for visas at a location within Canada; OR
- Foreign nationals who are traveling as a U.S. government-sponsored exchange visitor.
- Although not subject to the travel ban, calls for Iraqi nationals to be subjected to additional scrutiny
- Confirms that no visa issued before March 16, 2017 will be revoked as a result of the March 6th Executive Order and that any individual with a revoked or cancelled visa as a result of the January 27th Executive Order is entitled to a travel document for travel and entry to the U.S.
- Orders an assessment of each country by federal agencies to determine if additional information is needed in order to adjudicate a visa or other immigration benefit before individuals of the six countries can resume entering the U.S.
The U.S. Refugee Admissions Program (“USRAP”):
- Suspends the USRAP for 120 days with possible exceptions to be made on a case-by-case basis: if it is in the national interest and the person would not pose a threat to the security or welfare of the US, including where the person’s admission is required to conform U.S. conduct to an international agreement, or when denying admission would cause an undue hardship
- Does not apply to refugee applicants who were formally scheduled for travel by the U.S. Department of State before March 16, 2017
- During the current fiscal year, reduces the admission of refugees to the U.S. from the current level of 110,000 set by the Obama administration to 50,000
- Orders a review of the USRAP application and adjudication process
- Directs the Department of Homeland Security (“DHS”) to determine the extent to which state and local jurisdictions may have greater involvement in determining the placement or resettlement of refugees in their jurisdictions
The Visa Interview Waiver Program:
- Suspends the Visa Interview Waiver Program, requiring all nonimmigrant visa applicants to attend an interview unless an interview is not required by statute, thereby increasing the interview wait times and processing times for visa applicants, including for foreign nationals who have already been vetted, have a stable employment and travel record, and are regarded as a low security risk
- Orders federal agencies to create screening standards and procedures for all immigration benefits to identify fraud and to detect whether a person intends harm
- Directs agencies to expedite the completion of and implementation of the biometric entry-exit system at all air, land and seaports of entry in order to better detect overstays.
Subsequently Issued Guidance
On March 6, 2017, the White House issued a memorandum to the Secretary of State, Attorney General, and Secretary of Homeland Security providing direction on the implementation of the March 6th Executive Order. This memorandum calls for immediate implementation of “enhanced vetting procedures” and directs all agencies to “rigorously enforce” all existing grounds of inadmissibility and to monitor compliance with related laws after a foreign national has been admitted into the U.S., without making exceptions for minor technical violations.
In addition, the U.S. Department of Homeland Security has provided resources regarding the March 6th Executive Order, including a ‘Fact Sheet’ and a ‘Q&A’, which provide limited additional insight.
On March 16, 2017, the U.S. Department of State issued a statement confirming that U.S. embassies and consulates will continue to process visa applications normally at this time, while the March 6th Executive Order is barred from implementation.
Notably, on March 17, 2017, U.S. Secretary of State Rex Tillerson issued a cable to U.S. consular posts worldwide, instructing increased scrutiny for some visa applicants, in line with the White House’s March 6, 2017 memorandum.
Litigation and Political Opposition
On March 8, 2017, Hawaii became the first state to challenge the March 6th Executive Order. On February 3, 2017, the State of Hawaii had filed a suit in the United States District Court for the District of Hawai’i challenging the January 27th Executive Order, requesting a temporary restraining order. This suit was stayed in light of the nationwide injunction affirmed by the Ninth Circuit Court of Appeals. On March 8, 2017, Hawaii filed a motion to lift the stay, an amended complaint and a motion for a temporary restraining order against the March 6th Executive Order. A federal judge granted the motion to lift the stay and, on March 15, 2017, one day before it was set to go into effect, issued a temporary restraining order prohibiting the federal government from enforcing or implementing certain sections of the March 6th Executive Order. On March 29, 2017, the District Court for the District of Hawai’i converted the temporary retraining order to a nationwide preliminary injunction. The federal government filed a notice of appeal of this ruling on March 30, 2017 and the Ninth Circuit Court of Appeals is set to hear arguments before a three-judge panel on May 15, 2017.
Similarly, on February 3, 2017, a suit was brought in the United States District Court for the District of Maryland challenging the January 27th Executive Order, requesting an injunction and declaration that the entire Executive Order is invalid. On March 10, 2017, the International Refugee Assistance Project, the refugee resettlement agency HIAS, the Middle East Studies Association of North America, and several individuals filed an amended complaint seeking an injunction and a motion for a temporary restraining order against the March 6th Executive Order. On March 16, 2017, the United States District Court for the District of Maryland declined to issue an injunction blocking the March 6th Executive order in its entirety, but granted an injunction barring the federal government from implementing a section it. The federal government filed a notice of appeal of this ruling on March 17, 2017 and an en banc panel of 15 active judges for the Fourth Circuit Court of Appeals is set to hear arguments on May 8, 2017.
There are also law suits in earlier stages of litigation before the United States District Court for the Western District of Wisconsin and the United States District Court for the Western District of Washington.
The March 6th Executive Order also faces political opposition; a coalition of thirteen Senate Democrats introduced a bill to withhold federal funding for the March 6th Executive Order’s enforcement and to designate it as illegal under the Immigration and Nationality Act.
Limit Non-Essential Travel
As mentioned above, the March 6th Executive Order is currently tied up in litigation and has not yet been implemented. Therefore, the exact interpretation of this executive order by the various federal agencies involved remains to be seen. At present, due to this uncertainty, we advise individuals from the six designated countries to avoid non-essential international travel. Additionally, we anticipate that the consular process to obtain a nonimmigrant visa stamp in a foreign national’s passport will experience major delays as a result of the March 6th Executive Order as well as the subsequently issued guidance. Therefore, at this time we also advise individuals who require the issuance of nonimmigrant visa stamps in their passports before re-entry into the United States to avoid non-essential international travel.