On March 6, 2017, the Trump administration issued a revised Executive Order “travel ban” temporarily suspending visa issuance from six (6) countries – Iran, Yemen, Libya, Sudan, Syria and Somalia.  The new Executive Order seeks to replace the previous travel ban issued January 27 after the Ninth Circuit Court of Appeals upheld a nationwide injunction on February 9. 

The new Executive Order seeks to cure two primary deficiencies identified in the prior order – a lack of due process (notice and an opportunity to be heard) for individuals from the named countries, and concerns regarding possible discriminatory intent for citizens of those predominantly Muslim countries who are seeking US immigration benefits. 

Here are the key points of the revised Executive Order travel ban:

• The Executive Order affects citizens of six (6) countries: Iran, Yemen, Libya, Sudan, Syria, and Somalia.  The Order identified these countries as ones previously designated by Congress and former President Obama as posing national security risks.  The purpose of the temporary ban is to ensure “a more rigorous vetting process” for visa applicants from those countries.
• Iraq was removed from the original list following negotiations between the Iraqi Government and the US State Department that resulted in an agreement for increased cooperation for vetting visa applicants from that country. 
• Effective March 16, foreign nationals from the six (6) named countries who are outside the US and did not have valid visas as of January 27 (the date of the first Executive Order) will not be allowed to enter the US for a period of 90 days. 
• Over the next 20 days, the Department of Homeland Security (DHS) will perform a global review of the identity and security information every country provides the US Government as part of the US background check process for visa issuances.  Countries will then be given 50 days to comply with requests to comply with any deficiencies identified by DHS.
• Addressing the due process deficiencies cited by the Ninth Circuit on the prior Executive Order, the new Order exempts certain classes of people from the travel ban, including:
  • US permanent residents;
  • Dual nationals who travel using a passport issued by a non-designated country.  For example, an individual with passports from Syria and the UK could still travel to the US using the UK passport;
  • Certain diplomatic travelers with valid visas; and
  • Individuals previously granted asylum or refugee status prior to the Order’s effective date (March 16).
• The Order does allow DHS discretion to issue visas to citizens of the designated countries in the event a denial would impose undue hardship, the individual would not pose a security risk, and admission would be in the US’s “national interest.”
• The Order suspends the Refugee Admissions Program for 120 days to allow DHS and other agencies to review screening processes for admission to the US.  The Order goes on to cap the number of refugee admissions thereafter to 50,000 for fiscal year 2017 (Oct. 1, 2017 to Sept. 30, 2018). The Order would not impact, however, refugees who have already been scheduled for transit by the State Department. That is a more than 50% decrease of the number of refugees that would have been allowed under President Obama’s plan, but is significantly more than the 10,000 Syrian refugees actually granted admission last year.

Although the revised Order attempts to address the due process concerns that plagued its predecessor, it will likely face many of the same legal challenges.  In particular, during oral argument before the Ninth Circuit, the federal government had to concede that no evidence existed in the record of any act of terrorism being committed on US soil by citizens of the designated countries.  Similarly, the federal government will likely be called on to explain the alleged lack of vetting tools currently in place to justify the selection of these six (6) countries. 

Employers with international talent should advise their international employees to use caution when traveling abroad.  Employees with visas sponsored by the employer (e.g., H-1b’s, E-2’s,TN’s, etc.) should be advised to communicate with their employers well in advance of any planned international travel to make sure all steps have been taken to ensure a safe return to the US.  Prior to traveling, foreign employees should make sure their visa stamps in their passports are current, or take all preparations for timely applying for a new visa stamp at a US Consulate while traveling abroad, keeping in mind local customs at US Consulates vary from country to country. 

Foreign nationals from the six (6) designated countries who are now outside the US should be sure that their visa stamps are current and would be well advised to return to the US prior to the March 16 effective date of the Executive Order.  Foreign nationals from the designated six (6) countries with valid visas issued before January 27 should be safe to travel, although they may wish to delay any unnecessary international travel.  Employers will want to consult with their immigration counsel to make sure that even foreign nationals with a valid visa stamp are nonetheless traveling with an appropriate travel packet to address any issues that could arise at the border.

The US immigration landscape is quickly evolving.  We are closely monitoring this and other changes to the US immigration system to keep you advised of all developments.