On January 27, 2017, President Trump signed an Executive Order (“EO”) entitled “Protecting The Nation From Terrorist Attacks By Foreign Nationals,” immediately suspending entry into the United States for nationals of seven countries (Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen) for 90 days. The travel ban will only be lifted when the Department of Homeland Security (“DHS”) is satisfied that the countries have provided the information “needed … for the adjudication of any … benefit under the INA … to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat.” The EO leaves the option of adding other countries to the list at any time. The EO goes on to bar all refugees from entering the U.S. for 120 days. The EO also bars all Syrian Refugees indefinitely from entering the U.S.
On January 28, 2017, New York District Judge, Anna M. Donnelly, issued a “stay” blocking parts of the Executive Order and preventing the Customs and Border Patrol (CBP) from removing or detaining refugees and others with valid visas, holding that these individuals should not be sent back to their home countries. Three other federal judges have since issued similar orders but none have ruled on the broader legality or constitutionality of the Executive Order.
As a result of the broad language used in the EO, inconsistent implementations of the EO by CBP officials and other immigration agencies were reported throughout the week. On January 31, 2017, clarifications and guidelines were issued by DHS. A full list can be found on DHS’ fact sheet. Notable guidelines include:
- Visa Interview Waiver Program (commonly known as “dropbox” service) is suspended for all countries. While it is unclear when the suspension will be implemented, employees should continue consular processing with the expectation that they may be called in for an interview if they were automatically placed in the dropbox service.
- A lawful permanent resident’s entry (from one of the seven listed countries) will be determined on a case-by-case determination with permanent residence as a dispositive factor in the determination, unless there is “significant derogatory information indicating a serious threat to public safety and welfare.”
- The CBP has recently released a statement confirming that foreign nationals traveling to the United States will be “treated according to the travel document they present.” That is, individuals who are nationals of one of the seven countries and another country should be admitted to the U.S. if they present a passport for a country that is not covered by the order.
- F1/J1/M1 visas are currently revoked; however, individuals who were in the U.S. with these visas at the time of the signing of the Executive Order are not currently affected by the order. Individuals who were out of the country at the time of the signing and who attempt to return to the U.S. will not be allowed to return for this temporary period because of a lack of valid travel documents.
- N-400 applications for naturalization will continue to be processed.
EIG will continue to diligently monitor the situation and provide real-time updates.
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