Fragomen, Del Rey, Bernsen and Loewy

President Trump has signed a revised executive order that will suspend the entry of nationals of Iran, Libya, Somalia, Sudan, Syria and Yemen for a period of 90 days beginning March 16 at 12:01 am ET.  The new order rescinds the President’s January 27 travel ban, which a federal court suspended last month. 

The new travel ban will be in effect through June 14, 2017.  However, the ban could be extended and additional countries could be subject to restrictions.

Who Is Subject to the Revised Entry Ban?

The executive order prohibits nationals of the six restricted countries from entering the United States unless they qualify for an exemption or are granted a waiver.  Iraqi nationals are not subject to the ban, though they were covered by the original January 27 order.  

The order also suspends the admission of refugees from any country, including Syria, for 120 days as of March 16.  The previous entry ban suspended the admission of Syrian refugees indefinitely, but that restriction has been dropped.

The following classes of foreign nationals will be exempt from the ban:

  • U.S. lawful permanent residents (green card holders).
  • Holders of a valid U.S. visa, even if they have not yet used it. Visas that were provisionally revoked under the January 27 executive order should be valid for travel.  Foreign nationals with a visa that was physically canceled under the January 27 executive order may be entitled to a new travel document for entry to the United States.
  • Dual nationals traveling on a valid passport from a non-restricted country.  Dual nationals must hold a valid U.S. visa or be visa-exempt.  Canadian landed immigrants are subject to the ban but may be eligible for a discretionary waiver (see below).
  • Foreign nationals holding a valid advance parole document.
  • Foreign nationals holding a valid A, C-2, G or NATO visa.
  • Foreign nationals granted asylum.
  • Refugees already admitted to the United States and those with travel formally scheduled by the State Department.

Once the ban is in effect, non-exempt nationals of the restricted countries will be prohibited from entering the United States for the duration of the ban unless they are granted a waiver, discussed below. 

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.  However, applicants should be prepared for lengthy security screening and the possibility that they may not be issued a visa before the entry ban takes effect.

Waivers of the Entry Ban

The executive order permits the Departments of Homeland Security and State to grant discretionary waivers of the entry ban.  Waiver applicants must show that a denial of entry would cause undue hardship and that their entry is in the national interest and would not pose a threat to national security.

The executive order suggests that a waiver may be appropriate for several classes of foreign nationals, including Canadian landed immigrants applying for a visa in Canada, persons with significant business or professional obligations in the United States, and nonimmigrants previously admitted to the United States for a continuous period of work, study or another long-term activity who are seeking to resume that activity.  However, given the stringent criteria, waivers may be difficult to obtain.

Processing of Immigration Applications and Petitions

The executive order limits the State Department interview waiver program for nonimmigrant visa applicants.  Though foreign nationals from non-restricted countries may still qualify for an exemption from an in-person visa interview, visa applicants should check the website of the relevant U.S. consulate for specific information, which is subject to frequent change.

In addition to the entry ban, the President has issued a memorandum directing DHS, the State Department and the Justice Department to implement more stringent vetting of applications and petitions for immigration benefits.  Enhanced security screening could take effect quickly, and may delay processing at USCIS and at U.S. consulates.

Travel Guidance for Nationals of Restricted Countries

If you are a national of one of the six restricted countries, you should take the following guidelines into consideration once the entry ban takes effect.

Travel to the United States is permitted if:

  • You are a U.S. lawful permanent resident.
  • You have a valid, multiple-entry U.S. visa and you are otherwise admissible.  If your visa was physically canceled pursuant to the January 27 executive order, contact your Fragomen professional.  As noted above, you may be entitled to a new travel document under the revised order.
  • You are in transit to the United States when the ban takes effect, you hold a valid U.S. visa and are otherwise admissible.
  • You are an applicant for adjustment of status and hold a valid advance parole document.

Travel to the United States is restricted if:

  • You are in the United States and your visa was valid for a single entry only.  If you must travel, you may be unable to obtain a new visa for re-entry until the ban lapses, unless you are approved for a waiver.  Your travel may be further delayed if the ban is extended.
  • You are in the United States with an expired visa or a visa that will expire during the ban.  If you must travel, you may be unable to obtain a new visa for re-entry until the ban lapses, unless you are approved for a waiver.  Your entry may be further delayed if the ban is extended.
  • You are outside the United States and need to apply for a visa or have a pending visa application unless you are granted a waiver.

If you are planning future travel to the United States, you should be prepared for the possibility of an extension of the travel ban and a resulting delay in your travel.

Impact of Ongoing and Future Litigation

Lawsuits challenging President Trump’s original January 27 entry ban continue.  Though the government may try to have these court challenges dismissed, it is likely that the plaintiffs will revise their lawsuits to include claims against the new ban.  New court challenges are expected as well. 

Fragomen is closely monitoring federal court activity and will provide updates as necessary.

What the Revised Entry Ban Means for Employers and Foreign Nationals

Organizations should work with their Fragomen professionals to identify and determine whether the company wishes to notify employees who may be subject to the revised ban.  This includes foreign nationals currently in the United States as well as overseas employees who may have been planning travel to the United States.

Fragomen is closely monitoring the implementation of the new executive order and will provide frequent updates.  If you have any questions, please contact your designated Fragomen professional.  This alert is for informational purposes only.

Published with permission from Fragomen, Del Rey, Bernsen & Loewy, LLP. 

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