Please note that the information below is up-to-date as of Monday afternoon, January 30, 2017. This issue is evolving rapidly and readers should stay tuned for further updates and consult immigration counsel before making any travel decisions.
As outlined in our Alert of January 27, 2017, President Donald Trump signed an Executive Order (EO) that, among other things, imposed a ban on entry into the U.S. for foreign nationals “from” Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. While the EO also uses the more specific term “nationals” of those countries, until this is clearly defined, given the confusion in the EO’s implementation, we recommend applying a broad definition to determine who is affected in the interest of caution. This might include (1) citizens of one of the designated countries or someone entitled to hold that country’s passport; (2) dual citizens having the citizenship of a designated country; or (3) someone born in a designated country who is a citizen of an undesignated country.
It is important to note that the EO was signed late in the afternoon, just before the weekend, and the text was not made public until later Friday evening. It was implemented immediately, with inconsistent interpretations at various airports and U.S. ports of entry, causing considerable confusion and anxiety. This alert will update the state of this ban as it now stands.
Over the weekend, motions were filed by immigration advocacy groups, and federal courts in Boston, New York, Virginia, Washington State and California issued temporary restraining orders halting enforcement of this entry ban for 7 days. The decisions from the federal courts in New York City and Boston are effective nationwide while other decisions impacted only the individuals petitioning for relief. These court orders provide a legal basis for foreign nationals from the impacted countries to enter the U.S. on a valid nonimmigrant visa, permanent resident card (green card), or appropriate refugee documentation. The federal court in Boston’s order also includes language limiting secondary screening and language to not detain anyone otherwise eligible for entry.
In spite of these court orders, there continues to be uncertainty among government agencies as to how to handle foreign nationals from these impacted countries, and there have been incidents of travelers being detained — often for hours, and not being allowed entry.
The most recent positive development came late Sunday evening when the Department of Homeland Security (DHS) issued a written statement clarifying that permanent residents from the affected countries are entitled to enter, absent derogatory information in their records.
We have also learned that many air carriers are not allowing impacted foreign nationals to board flights to the U.S. even if in possession of valid travel documents.
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