Executive Order and Travel Ban for Certain Foreign Nationals

trump-signitureOn January 27, 2017, President Donald Trump issued an executive order titled “Protecting the Nation from Foreign Terrorist Entry into the United States.” Among several provisions, Section 3 of the Order “suspends” immigrant and nonimmigrant entry of nationals from “certain designated countries” for 90 days from the date of the order. The Executive Order applies to all individuals “from” Iran, Iraq, Syria, Libya, Somalia, Sudan, and Yemen. This includes lawful permanent residents (LPRs), nonimmigrant visa holders, immigrant visa holders, refugees, asylees, and others. U.S. Embassies and Consular Posts have also been instructed to immediately suspend issuance of nonimmigrant and immigrant visas for nationals of these countries, and those with scheduled interviews are being canceled.

The order does not define what it means to be “from” a designated country. Therefore, many attorneys are erring on the side of caution, and interpret the order to affect anyone who holds a passport from one of the seven countries. This includes dual citizens who hold passports from a designated country, as well as a non-designated country. It has not been made clear if people who have merely traveled to one of the countries are affected.

After the 90 days have elapsed, travel will not be automatically reinstated. Instead, the Department of Homeland Security (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 will have 60 days to comply, or the travel ban will become indefinite.

On Sunday, the American Civil Liberties Union and attorneys from the American Immigration Lawyers Association filed suit across the country to halt the executive order. A federal judge in New York granted a nationwide stay of removal, preventing deportation for individuals affected by the order with valid visas and approved refugee applications. A federal court in Massachusetts went further, barring federal officials from detaining or removing individuals subject to the executive order for seven days. Therefore, Logan Airport may be the safest port of entry this week. Additionally, a judge in Virginia ordered federal officials to provide lawyers access to “all legal permanent residents being detained at Dulles International Airport” and barred deportation of affected individuals for the next seven days. Finally, in Washington, a federal judge barred the federal government from deporting two individuals affected by the order.

Also on Sunday, Department of Homeland Security Secretary John Kelly issued a statement that DHS will ensure “that all individuals affected by the executive orders, including those affected by the court orders, are being provided all rights afforded under the law.” Although Sec. Kelly confirmed that U.S. Customs and Border Protection will continue to comply with the order, he confirmed that “absent the receipt of derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status will be a dispositive factor in our case-by-case determinations” to admit people to the United States, finding their admission to be “in the national interest.” Beyond lawful permanent residents, Sec. Kelly confirmed that DHS will continue to enforce the executive order while complying with judicial orders.

If you, a family member, or one of your employees holds a passport from Iran, Iraq, Libya, Somalia, Sudan, Syria, or Yemen, we urge them not to travel internationally for the time being. If you are currently in the United States, the safest thing you can do is remain in place. Although Secretary Kelly’s statement seems to allow for LPRs to enter the country, CBP is still authorized to use their discretion in admitting people at airports and the border. Some LPRs have reported CBP officers pressuring them to sign I-407 forms at the airport, which relinquishes their LPR status. If CBP presents you with this form, DO NOT SIGN IT. Your LPR status will be revoked and you will be removed from the country. Nonimmigrants from the seven designated countries who attempt to enter the U.S. will be allowed to withdraw their application for admission. If they opt not to withdraw, the nonimmigrant will be placed into expedited removal, and will be barred from the United States for five years.

Although this situation is alarming, attorneys from the ACLU and AILA are working tirelessly on the behalf of foreign nationals from the seven designated countries. This situation is fluid, and may change, for better or worse, at any time. We will keep you updated as information becomes available. Please do not hesitate to contact us with questions or concerns about this issue.

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