January 29, 2017
- Refugees: The government has halted travel for refugees from the 7 designated countries. The exception for refugees that are currently “in transit” found in Section 5(e) of the Executive Order does not apply to people from those designated countries. However, based on authority in the executive order, refugees that are NOT from the designated countries that had been scheduled to arrive in the next few days will be allowed entry to the U.S. upon arrival. There were reportedly no refugees scheduled to travel over the weekend.
January 28, 2017: AILA has received the following clarifications from DHS. However, reports from AILA members indicate that policies are not being implemented consistently on the ground. Please note that the situation is fluid, and may change at any time.
- DHS is currently implementing the travel ban. This was confirmed in media reports, as well. Headquarters is planning to issue public guidance, though we do not know when it will be released.
- Who Does This Affect?
- The Executive Order applies to all individuals “from” the 7 designated countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. That includes Legal Permanent Residents (LPRs), nonimmigrant visa holders, immigrant visa holders, refugees, derivative asylees, Special Immigrant Visas (SIVs), etc.
- Anyone who holds a passport from a designated country is considered as being “from” the designated country. This includes dual citizens who hold passports from a designated country, as well as a non-designated country.
- CBP will be processing people based on how they present themselves at primary inspection.
- The Executive Order does NOT apply to people who merely traveled to designated countries.
- Legal Permanent Residents: There appears to be some limited discretion for DHS to admit LPRs on a case-by-case basis, and following a thorough security review. LPRs will be allowed to board planes. Their cases will be adjudicated at the port of entry.
- Nonimmigrants: Nonimmigrants will be allowed to withdraw their application for admission. Expedited removal will generally only be used for those individuals who do not wish to withdraw their application for admission.
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.