Travel Ban Reinstated

Today the White House released the promised updated “travel ban” Executive Order (“Protecting the Nation from Foreign Terrorist Entry into the United States”).  The original Executive Order was enjoined by a federal court on February 9, 2017.

The effective date of the new order is 12:01 a.m., Eastern Daylight Time on March 16, 2017.

The new Order revokes the initial Order (Executive Order 13769).  It removes Iraq from the list of affected countries.  The remaining countries are:  Iran, Libya, Somalia, Sudan, Syria and Yemen.  Persons from Iraq will be subject to additional scrutiny in the visa and entry process.

Entry will be banned for 90 days from effective date of the order for nationals of the named countries who:

• Are outside the U.S. on the effective date
• Did not have a valid visa on 5:00 PM, Eastern Standard Time on January 27, 2017 and
• Do not have a valid visa on the effective date.

However, the Order states that no immigrant or nonimmigrant visa issued before the effective date should be revoked.  Additionally, anyone whose visa was revoked or canceled as a result of the first order “shall be entitled to a travel document confirming that the individual is permitted to travel to the United States and seek entry.”  Also, any previous cancellation or revocation of a visa “that was solely pursuant to Executive Order 13769 shall not be the basis of inadmissibility for any future determination about entry or admissibility.”

Not included in the ban are:

• Lawful permanent residents of the U.S.;

• Any foreign national who is admitted to or paroled into the United States on or after the effective date of this order;
• Any foreign national who has a document other than a visa, valid on the effective date of this order or issued on any date thereafter, that permits him or her to travel to the United States and seek entry or admission, such as an advance parole document;
•  Any dual national who is traveling on a passport issued by a non-designated country;
• Those traveling on diplomatic or diplomatic-type visa, North Atlantic Treaty Organization visa, C-2 visa for travel to the United Nations, or G-1, G-2, G-3, or G-4 visa; or
• A person who has been granted asylum; a refugee admitted to the United States; or anyone who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture.

The ban may be waived by a consular officer or by Customs & Border Protection (CBP) on a case-by-case basis if “denying entry during the suspension period would cause undue hardship, and that his or her entry would not pose a threat to national security and would be in the national interest.”  A waiver by a consular office will be considered effective for entry unless some other reason is found to refuse entry by CBP.  Waivers will be considered for a person who:

• Has previously been admitted to the United States for a continuous period of work, study, or other long-term activity, is outside the United States on the effective date of this order, seeks to reenter the United States to resume that activity, and the denial of reentry during the suspension period would impair that activity;
• Has previously established significant contacts with the United States but is outside the United States on the effective date of this order for work, study, or other lawful activity;
• Seeks to enter the United States for significant business or professional obligations and the denial of entry during the suspension period would impair those obligations;
• Seeks to enter the United States to visit or reside with a close family member (e.g., a spouse, child, or parent) who is a United States citizen, lawful permanent resident, or alien lawfully admitted on a valid nonimmigrant visa, and the denial of entry during the suspension period would cause undue hardship;
• Is an infant, a young child or adoptee, an individual needing urgent medical care, or someone whose entry is otherwise justified by the special circumstances of the case;
• Has been employed by, or on behalf of, the United States government (or is an eligible dependent of such an employee) and the employee can document that he or she has provided faithful and valuable service to the United States government;
• Is traveling for purposes related to an international organization designated under the International Organizations Immunities Act (IOIA), 22 U.S.C. 288 et seq., traveling for purposes of conducting meetings or business with the United States government, or traveling to conduct business on behalf of an international organization not designated under the IOIA;
• Is a landed Canadian immigrant who applies for a visa at a location within Canada; or
• Is traveling as a United States government-sponsored exchange visitor.

Refugee admissions

Refugee admissions will be suspended for 120 days, and the number of admissions will be reduced to 50,000 in fiscal year 2017. Case-by-case exceptions may be granted, including when an “individual's entry would enable the United States to conform its conduct to a preexisting international agreement or arrangement, or the denial of entry would cause undue hardship.”

Asylum programs are not affected, nor are withholding or removal or protection under the Convention Against Torture.