Travel Ban 2.0

Mar 8, 2017

On Monday, March 6, 2017, President Trump signed an Executive Order replacing the previously”‘issued Executive Order that banned the entry of citizens and nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen, suspended the U.S. Refugee Admissions Program indefinitely for Syrians and for a period of 120 days for everyone else, and directed various other changes or reviews of the nation’s immigration system. The new Executive Order contains similar provisions, but includes some clarifications and exclusions not contained in the original Executive Order.

The new Executive Order still contains a 90-day suspension of entry for certain citizens and nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen. This so-called travel ban begins on March 16, 2017. Citizens and nationals of Iraq are no longer included, but they may still be subjected to additional screening when seeking to enter the United States. The revised travel ban only suspends entry into the United States of individuals who are citizens or nationals of the six designated countries if those individuals:

1. Are outside the United States on March 16, 2017;
2. Did not have a valid visa by 5:00 p.m. on January 27, 2017; and
3. Do not have a valid visa on March 16, 2017.

Accordingly, foreign nationals who are physically present in the United States at 12:01 a.m., eastern daylight time, on March 16, 2017 and who are in status are not covered by the ban. Furthermore, according to the U.S. Department of Homeland Security’s Q&As, individuals outside the U.S. who hold valid visas may return to the United States during the 90-day period. We would caution, however, that these individuals may be subjected to additional scrutiny upon entry.

Lawful permanent residents (i.e., green card holders) are also explicitly excluded from the ban and may continue to travel internationally. The new Executive Order also clarifies that dual nationals (i.e., individuals who are nationals or citizens of one of the six designated countries and a non-designated country) will be permitted to enter the United States when traveling on a passport issued by a country not designated in the Executive Order. In other words, foreign nationals from one of the designated countries will still be able to enter the U.S. while the travel ban is in place if they present a valid passport from a country that is not included in the ban. For example, an individual who is a citizen of both Iran and Canada should be permitted to enter the U.S. on his/her Canadian passport.

Similar to the original Executive Order, the new Executive Order does provide consular officers and U.S. Customs and Border Protection officers discretion to authorize the issuance of a visa or allow entry of a foreign national covered by the ban on a case-by-case basis if the foreign national demonstrates that denying entry during the suspension period would cause undue hardship and that entry would not pose a threat to national security and would be in the national interest. The new Executive Order lists various circumstances where a waiver may be appropriate, including when the foreign national has significant contacts in the United States but is outside the U.S. on March 16, 2017, for work, study, or other lawful activity; the foreign national seeks to enter the U.S. for significant business or professional obligations; or the foreign national has been employed by, or on behalf of, the United States government and can document that he or she has provided faithful and valuable service to the U.S. government.

While the revised Executive Order appears to exclude many individuals from the travel ban and provides additional information about potential waivers, nonimmigrants from the designated countries who are present in the United States but plan to travel abroad during the period of the ban should be aware of the potential risks. In particular, individuals from the designated countries may be lawfully present in the United States pursuant to lawful nonimmigrant status, but the visas in their passports may have expired. If they travel abroad, they will not be able to return without a valid visa. It is not clear whether the American embassies and consulates will issue new visas during the period of the ban. Thus, nonimmigrants covered by the ban who travel abroad with an expired visa in their passport may be delayed in returning to the U.S. Furthermore, even nonimmigrants from the designated countries who plan to travel abroad during the period of the ban whose visas will remain valid through their return date may still be subjected to enhanced scrutiny at ports of entry upon their return to the United States, which could cause travel delays. Thus, nonimmigrants from the designated countries may want to consider delaying international travel until the conclusion of the 90-day travel ban.

The full text of the new Executive Order can be found here. The U.S. Department of Homeland Security has also released a Fact Sheet and Q&As that provide additional information on implementation of the new Executive Order.