The interpretations of this Order by the Trump Administration, including the Department of Homeland Security (DHS), have been evolving over the last few days. Given the broad scope of the order, universities and global companies have been taking immediate steps to advise affected persons and take advantage of court action that halted certain aspects of the order at various airports.

Key points include:

• Citizens of these seven countries traveling on a passport from one of these countries will not be able to enter the United States for 90 days, even if they have a valid visa and even if they are employed in the United States.
• The Order does not require these persons to leave the United States if they are already here, but, if they do leave, they will not be able to re-enter for at least the duration of the 90-day ban.
• The duration of this temporary ban may be extended.
• The Order does not apply to nationals of these restricted countries who are also U.S. citizens; travelers with a U.S. passport can still enter the country and are not within the scope of the restrictions.
• DHS issued a waiver on January 29 to state that the order does not apply to U.S. permanent resident aliens (green card holders) unless there is significant derogatory information regarding a serious threat to national security described below.  As such, green card holders who are citizens of these seven countries generally should be able to re-enter but can expect questioning upon arrival.
• DHS statements regarding dual citizens, those of one of the seven countries and a third country, are not definitive at this time but might indicate that DHS may not block such persons if they are not traveling using a passport from one of the seven countries. However, the order is written broadly enough to ban such persons on non-immigrant visas.
• DHS has stated that it has notified airlines about the restrictions and instructed them not to allow affected persons to board U.S.-bound flights.

Green Card Holders Will Face Scrutiny but Can Enter the United States

While there was initially confusion as to whether the order applied to green card holders, DHS has confirmed that the Order does apply, but DHS has also issued a national interest waiver to allow U.S. permanent residents who hold one of these seven nationalities to be admitted to the United States.

• DHS Secretary John Kelly issued the waiver on Sunday evening explaining that the admission of green card holders generally is "in the national interest."
•  Accordingly, green card holders will now be allowed back into the United States, but they can still be denied entry if there is "significant derogatory information indicating a serious threat to public safety and welfare."
• This means that green card holders could still likely face delays and questioning, and the discretion to deny their entry remains broad. For these reasons, green card holders should also exercise caution in making plans to travel internationally at this time.

Order's Application to Dual Citizens Remains Unclear

The text of the order is broad enough to apply individuals who are dual citizens of one of the seven countries and a separate third country (for example, a citizen of Iran and France), but it is not entirely clear whether it will be enforced against them. A recent DHS Fact Sheet provides some support that it should not impact them so long as they are not traveling with a passport of the targeted country.

• There have been a number of reports of dual citizens being denied entry into the United States.
• The text of the order refers to "nationals" of, and "aliens from" the seven countries. The term "national" is defined under U.S. immigration laws to mean "a person owing permanent allegiance to a state."  As such, even if a French-Iranian dual citizen travels under a French passport, that person is still a "national" of Iran. Accordingly, the travel ban could technically apply.
• A State Department news release asks "citizens" of these seven countries to not schedule appointments for visa applications and to not attend those that were previously scheduled.
• This State Department news release also singles out individuals who have dual citizenship with the United Kingdom, explaining, "Dual nationals of the United Kingdom and one of these countries are exempt from the Executive Order when travelling on a valid United Kingdom passport and U.S. visa." Thus, nationals of one of the affected countries traveling under a UK passport may still be allowed entry.
• Recent DHS statements seem to adopt a narrower interpretation than the text of the Order offers. In a Sunday Fact Sheet, the agency explained that the action applies to individuals "traveling on passports from [these seven countries." Under this language, it is feasible that the French-Iranian citizen traveling under a French passport would not be blocked from entry by the order.
• Given the extreme uncertainty on this point, though, these dual citizens should exercise caution when making travel arrangements and avoid leaving the United States to the extent that it is possible at this time. We expect DHS to issue more formal guidance on this issue to determine exactly how the Order affects such classes of travelers.

Order Sparks Litigation

Court challenges to the order have sprung up throughout the country, and these challenges had secured orders of temporary relief in four federal courts as of Sunday.

• The United States District Court for the District of Massachusetts issued the broadest of these orders on Sunday, staying the enforcement of the travel ban at Logan International Airport until February 4.
• Other orders in New York, Virginia, and Washington State limit removal from U.S. airports to varying degrees. We expect to see more challenges in court in the coming days and weeks.
• In response to this litigation, DHS said on Sunday that it "will comply with judicial orders; faithfully enforce our immigration laws, and implement President Trump's Executive Orders to ensure that those entering the United States do not pose a threat to our country or the American people."

Action Temporarily Bans Refugees from Around Globe

In addition to temporarily restricting entry for nationals of these seven countries, the order imposes an indefinite ban on refugees from Syria and a four-month ban on refugees from any country globally. During this 120-day ban, the order asks DHS to develop stricter procedures for reviewing future refugee applicants.

Order Carries Broad Implications for U.S. Visa Applicants

This order includes other provisions of interest to visa holders as well.

• U.S. embassies and consulates historically have waived the in-person interview requirement for certain types of nonimmigrant visas (e.g., renewal of certain U.S. work visas at certain consulates), but all visa applicants will now be required to appear in person.
• Moreover, the travel ban may extend to other countries in the future. The order requires DHS to review the information provided by countries for visa and immigration purposes, and countries that do not provide adequate information might face travel bans as well.
• Finally, the order asks DHS to impose additional scrutiny in considering applicants for various immigration benefits. Such mechanisms, once implemented, may impact the ability of applicants to obtain U.S. visas generally and lead to substantial delays in processing by U.S. embassies and consulates.

Basis for the Seven Countries

For now, the seven countries impacted are: Iran, Iraq, Libya, Sudan, Syria, Somalia, and Yemen.

• These are the same countries that were the targets of a change in the Visa Waiver Program (VWP) in 2016 (from legislation passed in 2015). The VWP allows citizens or nationals of certain countries to enter the United States for business or tourism without first obtaining a visa. Under the 2016 changes, formerly eligible individuals became ineligible if they had previously traveled to one of these seven countries. (See Hogan Lovells Alert from January 2016)
• The  travel prohibitions in the Order exempt certain kinds of visa categories such A or G visas and NATO visas.
• Although this ban is limited to 90 days, it could be extended possibly longer. Even if it is not extended, persons from those countries who would be coming in the future likely would face significant challenges in getting visas approved under the new "vetting" process.
• It is not yet clear what the new vetting/application process will entail and when/how it will be implemented, but it is possible that the temporary ban is extended until such vetting mechanism is in place. Given that it may take more than 90 days to put the new vetting mechanism in place, the Order could well be extended.
•  Additional countries could be added to the list, if they are deemed unresponsive to requests for information outlined in the Order.

Affected Travelers Should Remain Aware

At this time, affected individuals should avoid international travel to the extent that it is possible. Nationals of the seven listed countries who are not U.S. citizens should avoid leaving the United States if they intend to re-enter within the 90-day period. Although green card holders have received a DHS waiver, they will likely still face scrutiny and delays upon reentry. Nationals of these countries who hold non-immigrant visas will likely be unable to board vessels bound for the United States. Additionally, the list of countries may grow to exclude more nationalities, so individuals in the United States on nonimmigrant visas generally should be aware before traveling abroad.

Retaliatory Action

Countries targeted by this Order are enacting similar provisions that would impact U.S. travelers. The United Kingdom, Canada, the European Union, and other allies have been reaching out to the U.S. Government to discuss impacted citizens.