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Advisory: Travel Warning for Nationals of Certain Countries in Anticipation of Executive Order

16:53 27 January in News Updates
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Immigration-related Executive Orders issued by President Donald Trump

A presidential Executive Order relating to nonimmigrant visa issuance, immigration screening procedures, and refugees is likely imminent.  The draft of the Order, entitled “Protecting the Nation from Terrorist Attacks by Foreign Nationals,” is NOT the final version of the Executive Order and it has not yet been signed by the President.  Changes can be made prior to formal issuance.   LAC will update you if/ when the Order is issued.  However, given the significance, we are taking the unusual step of advising our clients of its specific content before the order is actually issued.

If executed, this will be the third Executive Order related to immigration matters issued by President Trump; two others were issued on January 25, 2017.  Those Executive Orders related to the construction of a wall along the southern border; ending prosecutorial discretion; deputizing state and local law enforcement officials to act as immigration officers; and penalizing sanctuary cities.  Clients who have questions or concerns about the contents of those Orders are welcome to contact their LAC attorney.

Three more draft executive orders were leaked to the press yesterday.  These draft orders impact DACA (the program for Deferred Action for Childhood Arrivals); the “public charge” ground of inadmissibility; and mandate review of all regulations which allow foreign nationals to work in the U.S.  LAC will provide additional information as it becomes available.

TRAVEL WARNING IN ANTICIPATION OF EXECUTIVE ORDER

PLEASE NOTE THAT WHILE THE ORDER REFERENCES SPECIFIC NATIONALITIES, ITS VARIOUS PROVISIONS MAY IMPACT INDIVIDUALS OF ALL NATIONALITIES. 

PLEASE TAKE THE TIME TO READ THE ADVISORY IN ITS ENTIRETY.   

Several provisions are likely to result in delays in visa issuance at all U.S. consulates abroad, as well as adjudications at U.S. Citizenship and Immigration Services. 

These delays would impact individuals of all nationalities. 

The delays also potentially impact any U.S. company that relies on the ability of its international colleagues to travel pursuant to a set schedule. 

Please be advised that these changes may impact project schedules and business needs.

ADVISORY

Individuals currently in the United States who may be affected by the Executive Order should refrain from leaving the U.S. for the duration of the ban. 

Those who depart should expect to be denied reentry while the ban is in effect.

Those who are outside the U.S. should try to return immediately.

Those who are traveling to the United States when the ban takes effect could be refused permission to board a flight to the United States or denied admission at a U.S. port of entry.

SUSPENSION OF ENTRY TO THE U.S.

If implemented without change, the order would ban individuals from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen from entry to the U.S. for 90 days.  Additional countries could be included.

The order would “suspend” the entry of nonimmigrants (for example, B-1/ B-2 visitors, F-1 students, H-1B workers, L-1 intracompany transfers), immigrant visa holders, and U.S. Lawful Permanent Residents (green card holders) from designated countries for 90 days.  [Update 1/29/17:  Admission of U.S. Permanent Residents may be permitted in the national interest.]

The order does not define what it means to be “from” a designated country.  To be cautious, at this point it may be best to interpret the term broadly to include those who hold passports from the designated countries, are citizens of the designated countries, nationals of those countries, and dual nationals (for example, a Canadian citizen originally from Iran).  It is unclear if individuals of other nationalities who have traveled to the designated countries will also be included in the ban.

After 90 days, travel is not automatically reinstated.  Instead, the Department Homeland Security would be required to report whether countries have provided information “needed … for the adjudication of any … benefit under the Immigration and Nationality Act … to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat.”   If not, the country would have 60 days to comply, or the travel ban would become indefinite.

SUSPENSION OF THE INTERVIEW WAIVER OPTION

To enhance efficiency and workload, the U.S. Department of State has a process for allowing applicants for visa renewals who met certain criteria to renew their visas through a mail-in process, rather than having to appear for another in-person interview.   The Order will suspend that process.

The suspension applies to nonimmigrant visa stamp (travel document) renewals at all U.S. Consulates worldwide.  It applies to all U.S. visa applicants, regardless of country of nationality or citizenship.  There are limited exceptions, such as for foreign diplomats.

Please be advised that wait times for appointments at all U.S. consular posts worldwide are likely to increase significantly as a result of this change.  To the extent possible, please plan travel and visa appointments well in advance. 

SIGNIFICANT CHANGES TO SCREENING PROGRAMS

This provision applies to screening programs for all immigration benefits, at all agencies.  

The goals of these programs are identified in the Order, but the mechanisms for implementing them are not.   The stated goals are to identify individuals who seek to enter the U.S. fraudulently or with the intent to cause harm.  The Order calls for procedures such as in-person interviews; the creation of a database of identity documents; revised application forms with questions aimed at “identifying fraudulent answers and malicious intent;”  a process to evaluate the likelihood that the person will become “a positive contributing member of society” and contribute to the national interest; and “a mechanism to assess whether or not the applicant has the intent to commit criminal or terrorist acts.”

Additional details are not yet available, although the order calls for a progress report to the president at 60, 100, and 200 day intervals.   What we can anticipate is that additional steps in the screening process will result in longer wait times at U.S. Consulates, and lengthening of the already delayed adjudication times at U.S. Citizenship and Immigration Services.   This is especially true given that the Trump Administration-imposed hiring freeze which applies to most federal employees would preclude these agencies from hiring additional staff to address the workload.

SUSPENSION OF REFUGEE ADMISSIONS

The Order requires the suspension of the U.S. Refugee Admissions Program for 120 days, during which time there will be a review of the process to determine what additional security measures can be taken.  The Order specifies that refugees already in the extremely lengthy process may be admitted after they have complied with the revised procedures.

Admissions of refugees from certain countries may be banned unless various U.S. government agencies have determined that “sufficient safeguards are in place to ensure the security and welfare of the United States.”

It will “prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality.”

The Order mandates the immediate cessation of all refugee processing from Syria until President Trump himself (not various government agencies) determines that sufficient changes have been made to the refugee program “to ensure its alignment with national interest.”

SAFE ZONE IN SYRIA

The Order also mandates the U.S. Secretary of Defense and U.S. Secretary of State to produce a plan within 90 days to “provide safe areas in Syria and in the surrounding region in which Syrian nationals displaced from their homeland can await firm resettlement.”

However, it is unclear how the United States government would be able to direct a sovereign nation as to how it will utilize its territory.  Nor is it clear how a nation or nations which are decimated by civil war in their own or surrounding countries would be able to make such accommodations.

Again, the above relates to a DRAFT Executive Order which has not yet been signed by the President.  LAC will provide updates as available.

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