President Trump Issues Executive Order Barring Entry of Foreign Nationals from Seven Countries
On Friday, 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.” Among other provisions, Section 3 of the Executive Order suspends the immigrant and nonimmigrant entry of nationals from seven designated countries for 90 days from the date of the order, or until April 27, 2017.
After 90 days, entry for nationals from designated countries 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.
Who is Subject to the Entry Ban?
The designated countries are those identified in INA § 217(a)(12), which include Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. This entry ban includes nonimmigrant visa holders (such as B-1, E-2, E-3, H-1B, L-1, O-1, etc.), immigrant visa holders, refugees, derivative asylees, Special Immigrant Visa (SIV) holders, etc. Other countries may be added and adjudications of other immigration benefits could be impacted. Anyone who holds a passport from a designated country (or possibly a claim to nationality from a designated country) is considered as being “from” the designated country. This includes dual citizens who hold passports from a designated country (such as Iran), as well as a non-designated country other than the United States (such as the U.K). The Executive Order does not apply to U.S. citizens (either those born in the U.S. or naturalized citizens), or to people who merely traveled to designated countries.
The Department of Homeland Security (DHS) has stated that Lawful Permanent Residents (LPRs) who are citizens of one of the seven designated countries will be admitted to the U.S. on a case-by-case basis, and following a thorough security review. They will be allowed to board planes, and their cases will be adjudicated at the port of entry. On January 29, DHS Secretary John Kelly stated that, in applying the provisions of the president’s Executive Order, the entry of LPRs is deemed to be in the national interest. Thus, absent the receipt of “significant derogatory information…, LPR status will be a dispositive factor in [the] case-by-case determinations.”
Widespread Government Processing Delays Expected
On January 27, the U.S. Department of State issued a notice that per the Executive Order, nonimmigrant and immigrant visa issuance at U.S. consulates abroad to nationals of the countries of Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen has been suspended until further notice. Additionally, the Executive Order suspends the Visa Interview Waiver Program (VIWP) at all U.S. consulates abroad, which means that all nonimmigrant visa applicants will need to attend an in-person interview at a U.S. consulate abroad (unless an interview is not required by statute). The VIWP previously allowed consular officers to waive the interview requirement for applicants seeking to renew nonimmigrant visas within 12 months of expiration of the initial visa in the same visa classification. Suspending the VIWP will place increased burdens on U.S. consulates and embassies (particularly high-volume posts) by increasing already extended interview wait times and visa processing times.
The order also calls for increased screening processes that would apply to all immigration adjudications by U.S. Citizenship and Immigration Services (USCIS). Details are expected in forthcoming government announcements. This announcement, in conjunction with the federal government hiring freeze announced on January 23 by President Trump, means that employers and individuals submitting immigration petitions and applications to USCIS and the U.S. Department of Labor should anticipate processing slowdowns.
Impact of Federal Court Litigation
Litigation filed in several federal district courts and resulting injunctions issued by federal judges on January 28 and 29 bar the removal (deportation) of affected individuals from designated countries. On January 29, DHS announced that it is taking steps to comply with the court orders, but is working with the Departments of Justice and State to implement the Executive Order. DHS stated that it is working closely with airlines to prevent travelers who would not be granted entry under the Executive Order from boarding international flights to the U.S.
What Should Employers Do?
We encourage employers to work with their McCown & Evans attorneys to identify employees who may be subject to the entry ban. This includes identifying foreign nationals currently in the United States, as well as overseas employees who may have been planning travel to the United States.
We advise employers to suspend all work-related international travel for non-U.S. citizen employees from the seven designated countries who are presently in the United States as nonimmigrants, Adjustment of Status applicants, or Lawful Permanent Residents for the duration of the ban. Lawful Permanent Residents from designated countries should be made aware that while DHS has announced that they may be admitted to the United States on a case-by-case basis, and following a thorough security review, we believe it is best for them to avoid traveling abroad as well. We also suggest that employers encourage non-U.S. citizen employees from the seven designated countries to remain in the United States and postpone any personal travel plans outside of the United States if possible, even if they have a valid visa, travel authorization, or green card.
- Foreign nationals from the seven designated countries who are currently outside of the United States and planning future trips to the United States should be advised that they should not attempt to travel to the United States, even if they have a valid visa or other travel authorization. They should also be prepared for the possibility of an extension of the travel ban beyond April 27, 2017 and a resulting delay in their ability to travel to the United States.
Employers should also be aware that travel delays are likely even for foreign employees who are not subject to the entry ban but who are applying for U.S. visas abroad, so it is recommended to postpone non-emergent business or personal travel for such employees as well. Based on the suspension of the Visa Interview Waiver Program discussed above, we expect that visa wait times will significantly increase. If an employee requires a new visa seal in their passport to return to the United States, employers should be prepared for the possibility that the employee will need to remain outside of the United States for an extended period of time.