Trumps Executive Order on Travel and Refugee Bans--An Analysis and Advice
President Trump signed an Executive Order on January 27, 2017, entitled “Protecting the Nation from Terrorist Attacks by Foreign Nationals." This Executive Order had immediate effects on people traveling to the United States, but also has a long term impact on individuals with visas and permanent residence in the United States today.
First, this Order specifically restricts any and all visa-issuance for individuals from Syria, Iraq, Yemen, Libya, Sudan and Somalia, and Iran, e.g. “Nationals of Countries of Particular Concern”. Additional countries could be included at a later date. What this means is that the USCIS and the Department of State cannot grant lawful permanent residence, or issue approvals for status changes, or issue visas to people born in these countries for the duration of the Executive Order, likely for at least 90 days. In addition, this means that Customs and Border Protection cannot "admit" anyone into the United States traveling on an immigrant visa or any type of nonimmigrant visa for 90 days. The Order does not cancel these visas or these applications, but suspends them, initially at least, for 90 days.
Our Advice: Do Not Travel under any nonimmigrant visa until this Executive Order is issued. Travel from the U.S. to any other country WILL result in your inability to return if you were born in one of these seven countries, regardless of what other passport or nationality you hold. Consult your KIP attorney or paralegal with your questions about this.
Second, the Executive Order also halts the resettlement of refugees in the U.S. for 120 days, giving the Trump Administration time to evaluate the efficacy of the security screening process. Further, all Syrian refugees are permanently barred from being part of the refugee program, once the program is restarted.
Our Advice: Have patience with this hold. We believe it will be lifted in 120 days. Under US Immigration Law, the President has broad authority in these matters. There will be many court cases filed in the coming days. Please note that this ban does NOT affect pending Asylum cases. In specific matters, Please consult your KIP Attorney or Paralegal.
Third, before travel for immigrant and nonimmigrant visa holders can be reinstated, the Department of Homeland Security is required to report whether these named 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. Also note that there have been restrictions in place on people who travel to designated countries, including these named countries.
Our Advice: Failure of these countries to comply may result in a permanent ban on visa issuance. For now we have no further details on this issue.
Fourth, if you are a lawful permanent resident (green card holder) or a dual citizen of the US and one of these countries, the Trump Administration and the Department of Homeland Security have both said that you are to be admitted to the U.S. in "the national interest" as a blanket waiver of the case by case determination mentioned in the Executive Order. Even then, we need you to be patient and vigilant. There are reports of CBP trying to convince Lawful Permanent Residents to sign for an abandonment of their residence.
Our Advice: For now we recommend that you refrain from traveling outside of the United States if you are already here, or try to return to the United States as soon as possible if they are outside of the country. Consult your KIP attorney or paralegal prior to traveling.
Fifth, in recent years some consulates have been waiving interviews for issuance of visa, from various countries around the world. This program has been suspended. Everyone who needs a visa will be required to attend an in-person interview.
Our Advice: Make sure your travel plans include enough time to obtain the visa prior to returning to the US, and do not travel if you do not have the necessary time. There will be lengthy delays in some countries. Consult your KIP attorney or paralegal prior to traveling.
Sixth, there are rather bizarre and likely unconstitutional new criteria added to visa and benefits issuance decisions. These may include a new process to evaluate an applicant's "likelihood to of becoming a positive contributing member of society" and "their ability to make contributions to the national interest." Neither of these criteria exists in the law and cannot but used to adjudicate benefits like the green card for spouses or employees, or work or student visa.
Our Advice: Be patient. Kuck Immigration Partners and our colleagues around the United States will be actively lobbying and litigating these issues. If you have question or concerns on the Executive Order affects you or your company, please call us today at 404-816-611.
Seventh, the Trump Administration is going to complete the "Entry/Exit" control system authorized by Congress in 1996, but never completed.
Our Advice: This will make the US like every other country in the world that monitors departures from the country. That said, nothing can be done here without billions of dollars authorized by Congress, so don't hold your breath for a working system for several years.
Understandably here are many questions being raised by the Executive Order, and we will continue to release information and analysis as more details becomes available. Please feel free to reach out with urgent questions at firstname.lastname@example.org or email@example.com or schedule an in-person or skype consultation at any time by calling 404-816-8611.