Trump Executive Order of March 7, 2017

Executive Summary:

The President’s new executive order of March 7, 2017 imposes an entry ban on foreign nationals from Iran, Libya, Somalia, Sudan, Syria and Yemen, effective 12:01am ET on March 16.  Nationals of Iraq are not subject to the ban. The ban does not apply to U.S. lawful permanent residents, dual nationals holding a passport from a non-restricted country and foreign nationals who hold a valid U.S. visa.  The Ban also immediately suspends the Visa Interview Waiver Program (VIWP) and effectively mandates in-person interviews for all nonimmigrant visa applicants, unless an interview is not required by statute or otherwise excepted by the Order.

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On March 6, 2017, the President signed a new executive order entitled, “Protecting the Nation from Foreign Terrorist Entry into the United States.”  The new Order takes effect on March 16, 2017 and expressly revokes the January 27, 2017 Order.     Until the new executive order takes effect, the State Department indicates that it will continue to process visa applications from nationals of the six restricted countries.  Applicants will be subject to lengthy security screening and the possibility that they may not be issued a visa before the entry ban takes effect.

The Following Classes of Foreign Nationals will be Subject to the Ban:

The order bans immigrant and nonimmigrant entries for nationals of Syria, Iran, Libya, Somalia, Sudan, and Yemen for at least 90 days.   Iraq, which was included in the first order, is not included in the new Order, although Iraqi nationals will be subjected to additional scrutiny.

Before individuals of the six countries can resume entering the U.S., an assessment of each country is required to be conducted by the Department of Homeland Security and Director of National Intelligence, to determine if additional information is needed in order to adjudicate a visa or other immigration benefit. The Secretary of State will then request the additional information from each country. If the country does not provide the additional information, they will be included in a Presidential proclamation prohibiting entry of certain categories of foreign nationals.

The Ban Applies to Foreign Nationals of the Designated Counties Who: 

• Are outside the U.S. on 3/16/17,
• Did not have a valid visa at 5pm EST on 1/27/17, AND
• Do not have a valid visa on 3/16/17

Eligible for a Waiver from the Ban are foreign nationals who have demonstrated to the officer’s satisfaction that denying entry would cause undue hardship, that his or her entry would not pose a threat to national security, AND would be in the national interest

The Ban does NOT apply to the following individuals:

• U.S. lawful permanent residents (green card holders)
• Foreign nationals admitted or paroled in the U.S. on or after 3/16/17
• Foreign nationals who have travel or admission documents to the U.S., other than a visa, which are valid on or after 3/16/17
• Dual nationals of one of the designated counties, who travel on a passport issued by a non-designated country
• Foreign national traveling on diplomatic of 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
• Foreign nationals who were granted asylum
• Any refugee who was already admitted to the U.S., or
• Any individual granted withholding of removal, advance parole, or protection under the Convention Against Torture

Suspension of U.S. Refugee Admissions Program (USRAP):   The order also suspends the USRAP for 120 days after March 16, 2017. During this time period the USRAP application and adjudication process will be reviewed. The order does not apply to refugee applicants who were formally scheduled for travel by the Department of State before the March 16, 2017. The program will resume after the 120-day suspension period, for all countries except those which officials determine should remain on the prohibited country list.  Exceptions can be made on a case-by-case basis if it is in the national interest and if the person would not pose a threat to the security or welfare of the United States.

Requires In-Person Interviews for Most Nonimmigrant Visa Applicants: The new order immediately suspends the Visa Interview Waiver Program (VIWP) and effectively mandates in-person interviews for all nonimmigrant visa applicants, unless an interview is not required by statute or otherwise excepted by the Order.   The VIWP allowed consular officers to waive the interview requirement for applicants seeking to renew nonimmigrant visas within 12 months of expiration of the initial visa in the same classification.  Until enough staff is hired, the Order will lead extended interview wait times and processing times.

Requires the Immediate Implementation of Biometric-Entry Exit:  The order directs agencies to expedite the completion and implementation of a biometric entry-exit system and includes reporting requirements.  Since 1996, Congress has mandated that an automated entry-exit system be developed and implemented at all air, land, and sea ports of entry in an attempt to track those who overstay their visas.  DHS has noted that a comprehensive entry-exit system at all ports of entry will require additional resources.

Guidance in Light of President Trump’s Executive Order:  In light of the stricter standards applied to visa issuance, security clearances, and the suspension of the Visa Waiver Program, foreign nationals should prepare for extensive delays in obtaining visas and associated security clearances.  Any travel should begin with a review of the documentation requirements listed below, and should a visa be required, a review of the consular website for processing times.  Return flights should be booked with plenty of time given to potential visa issuance delays.  Foreign nationals are also well advised to contact the professionals with whom they normally work on immigration matters prior to engaging in any international travel so that they may be apprised of any documentation, process, or other travel issues surrounding their particular status.

PRIOR TO INTERNATIONAL TRAVEL

All foreign nationals should also carry the following documents during international travel:

Passport Validity—Prior to engaging in international travel, it is imperative that foreign nationals make sure that they have a valid passport in hand that is valid for at least six (6) months after the planned re-entry date into the U.S.  Ideally, however, the passport will be valid for (6) months after the approved validity dates indicated on the nonimmigrant approval notice, Form I-797.

Nonimmigrant Visa—With the exception of Canadians, all nonimmigrants require a valid visa prior to re-entry into the United States.   An application for such a visa stamp can be made at an appropriate U.S. Embassy/Consulate abroad.  This will require that an appointment be made in advance with the consulate.  The visa application process at the U.S. consulate requires that foreign nationals appear in person for interview as well as fingerprinting and photographs prior to visa issuance.

Application for Visa at U.S. Embassy/Consulate Abroad:  In light of the above Executive Order, processing times are expected to increase dramatically.  Applicants should anticipate potential delays in being able to secure an appointment with the consulate as well as potential delays in visa issuance.

• See https://www.usembassy.gov/ for consular contact information.
• See https://travel.state.gov/content/visas/en/general/wait-times.html/ for information on projected visa appointment and processing times.

Advance Parole—Foreign nationals who are applicants for adjustment of status and plan to enter the U.S. using the advance parole document (AP) must have the AP approved and in hand PRIOR to the departure from the U.S.  Additionally, foreign nationals who are employed in the U.S. should also carry with them a valid Employment Authorization Document (EAD) card as it may be requested by the immigration officer at the port of entry.  No visa is required where a valid Advance Parole can be presented.

Students in F-1 Status:   Foreign students must carry a valid I-20 that is endorsed for international travel.

Lawful Permanent Residents:  Lawful permanent resident planning to depart the United States for a lengthy absence, should carry a Re-Entry permit.  Where a departure of five (5) months or more is anticipated, it is important to contact immigration counsel to discuss consequences and additional documentation that may be helpful to preserve both the permanent residence status, continuity of residence for naturalization purposes, or both.

Nationals of Banned Countries:  Foreign nationals from countries banned by the current Executive Order should at all times consult with immigration counsel PRIOR to departing the United States.

UPON ENTRY INTO THE UNITED STATES

Check Your Admission Record

Upon entry into the United States, nonimmigrants are issued a I-94 arrival/departure record and a passport stamp.   U.S. Customs and Border Protection (CBP) officers annotate the visa classification and the period of admission on the traveler’s passport.  Foreign nationals are well advised to ensure accuracy of both the visa classification, and most importantly, the period of admission hand written by the officer.  Errors can be corrected by the officer at the time of issuance so as to ensure that no inadvertent overstays occur.  Overstaying of as little as one day can trigger visa cancellations requiring that all future visa applications be made only at U.S. consulates in the individual’s home country, while overstays of a year or more, can trigger re-entry bars of up to ten (10) years.  It is recommended that foreign nationals provide a copy of the entry records immediately following re-entry into the United States to Younossi law so as to ensure proper monitoring and accuracy of issued classification and admission periods.

 FOREIGN NATIONAL OBLIGATIONS WHILE IN THE UNITED STATES

U.S. law requires every foreign national age eighteen (18) or older to carry documentation of their immigration status in the United States.  Compliance failure is a misdemeanor punishable by fines and imprisonment:

• A valid, unexpired I-94 admission record.
• A foreign passport containing a valid CBP admission stamp;
• A Form I-551 permanent resident card or a passport containing an I-551 stamp;
• A USCIS employment authorization document (EAD); or
• A Border Crossing Card, for citizen of Canada or Mexico.

Further obligations while in the United States also include:

Reporting Address Changes:  Every Foreign National in the United States who is a non-immigrant, lawful permanent resident, or a conditional permanent resident, must complete Form AR-11 to report an address change  within 10 days of a change of address. (Exceptions to this requirements are holders of A or G visas, United States citizens and asylees.)  Please see additional information here:  https://www.uscis.gov/addresschange

F-1 Student Visa Holder Obligations:  Foreign nationals students must notify their designated school official of changes to employment, course enrollments, residential address, etc. within 10 days of the change.  Students are furthermore required to report to their designated school official every six months to confirm the accuracy of reporting information in SEVIS.

Next Steps:  We expect further litigation of this revised ban and will be monitoring it closely.  Concurrently with the executive order, we are also seeing, monitoring and will be reporting on legislation which may impact employment based visa requirements.  During this period of change and uncertainty,  we are available for any questions or concerns you may have.