The Administration has now signed the Executive Order entitled, “Protecting the Nation from Terrorist Entry into the United States by Foreign Nationals,” with immediate effect. Individuals from the designated countries should strongly consider not traveling outside the United States during the periods mentioned below. Key provisions are as follows:
1. The Order prohibits the “immigrant or nonimmigrant entry” into the United States by nationals of Iraq, Iran, Yemen, Somalia, Syria, Sudan and Libya for the next 90 days – until April 27, 2017.
“Nonimmigrant entry” clearly refers to anyone on a temporary visa, such as a tourist or work visa. It is not entirely clear what “immigrant entry” means. The term could refer to people from these countries who have U.S. immigrant visas in their passports, which were issued at a US consular post abroad, and which would normally allow them to complete a green card process by making their first entry into the United States, thus triggering the production and mailing of a permanent resident card to them. It could also, however, refer to people who already hold green cards and are simply traveling abroad at this time. It is also not clear whether the ban applies to individuals who were born in these countries but are now citizens of and hold passports from other countries.
Within 30 days – by February 27, 2017 – the Departments of State and Homeland Security and the Director of National Intelligence (“DNI”) must send the President a list of information that each of these seven countries (and others they may wish to add later) must provide in order to ensure that their citizens who seek U.S. immigration benefits are not security risks. If these countries do not “cooperate” by providing the information within 60 days after the President receives the report, the ban will become indefinite for that country.
2. The Order bans Syrian refugees indefinitely and suspends all other refugee admissions for 120 days – until May 27, 2017.
During the 120-day review period, the U.S. refugee program is to be reviewed and additional security procedures potentially implemented. If and when refugee admissions reopen, the Order mandates that those who are fleeing religious persecution be given priority treatment, but only if they belong to a religious minority in their country. Presumably, this provision is designed to screen out Muslims and allow greater access to safe haven in the United States to Christians. The same criterion would apply to any refugees who are allowed in during the 120-day period on an exceptional, case-by-case basis. It is unclear whether such special treatment is even legal or constitutional under current law.
This section of the Order also promotes and supports the “authority” of local jurisdictions to decide whether and how to accept refugee placements. It is not clear how that position squares with the Administration’s oft-repeated threat to penalize those local jurisdictions who exercise similar authority in supporting sanctuary for immigrants and refugees.
3. The Order indefinitely suspends the Visa Interview Waiver Program, not to be confused with the “Visa Waiver Program” under which visitors from certain countries may travel visa-free to the United States. The Visa Interview Waiver Program allows certain travelers worldwide to skip in-person interviews at U.S. consular posts and obtain or renew their visas through mail-in or “drop box” procedures. Requiring an interview for every single U.S. visa applicant worldwide will undoubtedly create extremely lengthy wait times for appointments and visa issuance such as we have not seen for many years. According to the 2016 Report of the Department of State’s Visa Office, there were 12 million nonimmigrant visa applications worldwide, in Fiscal Year 2015 alone. The Order attempts to account for the radical increase in consular officers that will be required for such a massive interview program by expanding the Consular Fellows Program.
We will post updates as they become available, particularly with regard to how U.S. Customs & Border Protection is handling the admission of individuals from the designated countries. Please check back frequently.