NOTE: The travel ban provision of this executive order, and its provision suspending refugee admissions, have been blocked from taking effect under court orders in Hawaii and Maryland. Other court challenges remain pending. More information can be found here.
On March 6, 2017 President Trump signed an Executive Order imposing a 90-day suspension of entry and visa issuance to people from Iran, Sudan, Syria, Libya, Somalia and Yemen. The order also suspends refugee resettlement for 120 days, and reduces the number of refugee admissions for the current fiscal year from 110,000 to 50,000. Additional provisions of the order suspend the Visa Interview Waiver Program and urge immediate implementation of a biometric entry and exit system. The Jan. 27, 2017 Executive Order has been subject to a court-ordered injunction since Feb. 3, and is now rescinded.
The release of the Executive Order was accompanied by a Department of Homeland Security Fact Sheet and FAQs addressing various details of the order as well as agency implementation.
This new Executive Order goes into effect March 16, 2017. Key provisions of the order and DHS FAQs are described below.
Travel ban for nationals of Iran, Sudan, Syria, Libya, Somalia and Yemen
The Executive Order suspends the entry of citizens and nationals from the six designated countries who are outside the United States and who did not have a valid visa at 5 p.m. EST on Jan. 27, and do not have a valid visa on March 16, the effective date of the order. Unlike the now-rescinded travel ban, the new order does not include Iraqi nationals. Iraqi nationals seeking a visa, admission or other immigration benefit, however, will be subjected to additional screening related to ties to terrorist activities or organizations.
The new order includes a list of those who are not subject to the ban, as well as those who may be eligible for a waiver. Per Section 3 of the order, the travel ban does not apply to nationals of the six designated countries who are in the following categories:
- Lawful permanent residents
- Foreign nationals admitted to or paroled into the U.S. on or after March 16, 2017
- Any foreign national who has a document other than a visa, valid on or after March 16, 2017, that permits travel to the U.S., such as an advance parole document
- Dual nationals traveling on the passport issued by a non-designated country
- Foreign nationals traveling on diplomatic or diplomatic-type visa, NATO visa, C-2 visa for travel to the U.N., or G-1, G-2, G-3 or G-4 visa
- Foreign nationals granted asylum; refugees already admitted to the U.S.; and people granted withholding of removal, advance parole, or protection under the Convention Against Torture.
As clarified in the DHS FAQs, first-time-arrival refugees are also not subject to the travel ban if their travel has already been formally scheduled by the Department of State. Visas already issued will not be revoked as a result of the order.
Foreign nationals otherwise subject to the travel ban may be eligible for a waiver on a case-by-case basis at the discretion of the consular official or Customs and Border Protection, or CBP, officer. In order to qualify for a waiver, the foreign national must show that denial of entry will cause undue hardship, that his or her entry will not pose a threat to national security and would be in the national interest. Several examples of non-exhaustive circumstances that may justify a waiver are listed in the order. They include a child needing urgent medical care; a person who was previously studying in the United States and is abroad on the effective date of the order; and a spouse, child or parent seeking to visit or reside with a U.S. citizen or Lawful Permanent Resident. Application procedures for a waiver have not yet been specified.
The State Department says that until the order takes effect March 16, U.S. embassies and consulates will continue to process visa applications. According to the DHS FAQs, CBP is issuing guidance to the field about the order, as well as communicating with airlines.
People currently in the United States with valid visas from one of the six designated countries are cautioned that if they travel abroad and do not have a valid multiple-entry visa to return, they will need a new visa to return. They will be subject to the Executive Order travel ban provisions. Visa holders from the countries subject to the travel ban should avoid travel abroad if their visa will expire while they are outside the United States on or after March 16. In that situation, they would be unable to return for the duration of the travel ban unless a waiver is granted.
Finally, it does not appear that the travel ban will suspend U.S. Citizenship and Immigration Services adjudications of applications submitted by or on behalf of foreign nationals from the six designated countries. While the initial Executive Order imposing a travel ban referenced the suspension of visas and other immigration benefits, the new order is described as a suspension on entry. Although this has not been fully addressed yet by DHS, the FAQs say that the order does not affect the adjudication of applications for citizenship and for adjustment of status.
Suspension of refugee admissions
The Executive Order suspends admission of all refugees for 120 days from the effective date. The order does not apply to refugees who, before March 16, have been formally scheduled to travel to the United States. The order allows for a discretionary waiver, on a case-by-case basis, if the State Department and DHS jointly determine that a refugee’s admission is in the national interest and does not pose a threat to the security and welfare of the United States. Circumstances that may justify a waiver include: when the refugee’s admission would enable the United States to conform to a preexisting international agreement or where denial of entry would cause undue hardship. According to the DHS FAQs, this waiver option is not available to refugees who “follow to join” their refugee spouse or parent in the U.S. based on an I-730 petition. Once the refugee resettlement suspension takes effect, those individuals may only enter the United States if they have already been issued travel documents.
In addition to the ban on refugee admissions, the order suspends decisions by DHS on refugee applications for the 120-day period after March 16. The DHS FAQs say that DHS can continue to conduct refugee interviews, but cannot make final decisions on cases unless a discretionary waiver is granted.
Just as in the rescinded order, the new order more than halves the number of refugees who may be admitted to the U.S. during Fiscal Year 2017 from 110,000 to 50,000. According to the State Department, 37,027 refugees had been admitted as of Feb. 28, this fiscal year, leaving just under 13,000 available slots for refugee admissions before the new cap is reached. The new order does not include an indefinite ban on the admission of refugees from Syria, as the previous version did.
Refugees who are already in the United States and those granted U.S. asylum are not affected by this order. As long as they have valid travel documents, they are not restricted from returning to the United States following travel abroad.
Implementing uniform screening and vetting programs
Section 5 of the order calls for implementing a program to identify people who seek to enter the United States on a fraudulent basis; to support terrorism; or who present a risk of causing harm after entry. The order directs agencies including the State Department and USCIS to develop a uniform baseline for screening and vetting standards and procedures to achieve what is described as a “rigorous evaluation of the grounds of inadmissibility or grounds for the denial of other immigration benefits”
This issue is addressed in more detail in a separate presidential memorandum also issued on March 6. This memorandum similarly calls for the implementation of protocols and procedures to enhance the screening and vetting of applications for visas and for all immigration benefits. The memorandum directs State, USCIS and all other relevant agencies to “rigorously enforce all existing grounds of inadmissibility…”
The underlying premise of these two directives is that current procedures for assessing security risks and adjudicating inadmissibility are inadequate and/or not enforced. Advocates should continue to make a full evaluation of a client’s eligibility for benefits sought, including grounds of inadmissibility where relevant, and to vigorously argue for the correct application of law by USCIS adjudicators, immigration judges and consular officers.
Visa Interview Waiver Program
Section 9 of the Executive Order suspends the Visa Interview Waiver Program to ensure compliance with provisions in the law that require in-person interviews at U.S. consulates for nonimmigrant visa applicants unless a statutory exception applies. Under the program, consular officers could waive the interview if the applicant applied within 12 months of expiration of a prior visa in the same nonimmigrant classification. The Executive Order exempts nonimmigrants who are applying for diplomatic visas, NATO visas, transit visas to the UN, and visas to foreign government representatives traveling for purposes related to certain international organizations.
Since personal interviews will now be required for almost all nonimmigrant visa applicants, those applying after the effective date should be prepared for longer interview wait times and extended processing times.
Recission of exercise of authority related to terrorism grounds of inadmissibility
The Executive Order directs both State and DHS to consult with the attorney general to consider rescinding the exercise of authority provided to them in the statute at INA Sec. 212(d)(3)(B) and implementing memoranda, to grant exemptions and waivers of terrorism related grounds of inadmissibility, known as TRIG. The USCIS website says,” [t]he definition of terrorism-related activity is relatively broad and may apply to individuals and activities not commonly thought to be associated with terrorism.” Under the cited statutory provision, State and DHS are given unreviewable discretion to waive the material support and other terrorism-related grounds, which is a significant remedy for those affected by TRIG. To date, the government has exercised its authority to grant some group-based and situational exemptions, such as for having provided material support under duress, military-type training under duress and voluntary medical care. The removal of this waiver authority will subject many people, often asylees and refugees, to inadmissibility for minor conduct, which often was performed under duress.
Biometric entry-exit system
Since 1996, Congress has mandated that an automated entry-exit system be developed and implemented at all air, land, and sea ports of entry to track those who overstay their visas. DHS has used biometric entry since 2006, but has not been able to implement a biometric exit system. Section 8 of the new order directs the secretary of DHS to expedite the completion of a biometric entry-exit system to track the arrival and departure of “in-scope” travelers, a term not defined in the order. Implementation of such a system will require significant funding.
Anticipated court challenges
Although the new order was drafted to remedy legal deficiencies that led to court rulings enjoining enforcement of the initial order, legal challenges are inevitable. The state of Hawaii quickly launched an effort to block the orders from being implemented. Attorneys general from Oregon, New York and Massachusetts said they would join Washington and Minnesota in filing an amended complaint against the travel ban. While the new order excludes from the travel ban different categories of foreign nationals from the designated countries, and provides for the possibility of waivers for others, many of the same harms that arose from the first order will likely resurface, affecting U.S. citizens and institutions, LPRs and prospective travelers to the United States. We encourage CLINIC affiliates to complete CLINIC’s web form to report to us the adverse effects of the new Executive Order.
This document will evolve as the administration releases more information.
Last updated: 3/10/2017