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Status of 1/27/17 Executive Order on Immigration – Update as of 2/7/17

16:54 07 February in News Updates
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Update as of 8:00 a.m. (PST) Tuesday, February 7, 2017

“TRAVEL BAN” REMAINS SUSPENDED

Court Grants Nationwide Temporary Restraining Order in Response to Washington State and Minnesota’s Challenge to President Trump’s Executive Order

Courtesy of the American Immigration Lawyers Association (AILA):     On February 3, 2017, a federal court in Seattle granted Washington State and Minnesota’s emergency motion for a temporary restraining order (TRO) in its challenge to President Trump’s January 27, 2017 Executive Order (EO)  imposing a travel and refugee ban.  In accordance with the court’s ruling, the Department of Homeland Security (DHS) has suspended any and all actions implementing the affected sections of the EO, including actions to suspend passenger system rules that flag travelers for operational action subject to the EO. Likewise, the Department of State has lifted the provisional revocation of valid visas of nationals of Syria, Iraq, Iran, Libya, Somalia, Sudan, and Yemen.  All CBP Field Offices have been instructed to immediately resume inspection of travelers under standard policies and procedures, and all airlines and terminal operators have been notified to permit boarding of all passengers without regard to nationality.

On Saturday, February 4, the Trump Administration (via the Department of Justice) requested an emergency stay (lifting) of the order suspending the EO, pending appeal.  The judge denied the request, so the travel ban remains suspended.  Briefs regarding the motion to lift the suspension were filed on Sunday and Monday, respectively, and oral argument by phone is scheduled for Tuesday, February 7.   Such a schedule is extremely unusual, and is reflective of how urgent and serious all parties believe this issue to be. 

February 3, 2017

The U.S. District Court for the Western District of Washington issued a temporary restraining order, prohibiting the federal government from enforcing the following sections of the January 27, 2017 Executive Order:

–        Section 3(c)     90-day travel ban on “immigrants and nonimmigrants” from designated countries

–        Section 5(a)     120-day ban on U.S. refugee program

–        Section 5(b)     Prioritization of certain refugee claims

–        Section 5(c)     Indefinite suspension of Syrian refugee admissions

–        Section 5(e)     Case-by-case refugee admissions

The restraining order (suspension of the travel ban) applies nationwide.  All U.S. land and air ports of entry are prohibited from enforcing these portions of the EO until further order from the court.  Individuals previously impacted by the travel plan should make immediate plans to return to the U.S., as the order can be overturned without notice.

Note that the Section of EO relating to the suspension of the nonimmigrant visa interview waiver program at U.S. Consulate abroad remains in effectThose applying for visa renewal may not apply via the drop box/ visa interview waiver process.  This applies to all nationalities, at all U.S. Consulates worldwide.

STATEMENTS OF VARIOUS IMMIGRATION-RELATED FEDERAL AGENCIES

Department of Homeland Security agencies issued statements they would comply with the court order, but included the comment:  “At the earliest possible time, the Department of Justice intends to file an emergency stay of this order and defend the President’s Executive Order, which is lawful and appropriate.  The Order is intended to protect the homeland and the American people, and the President has no higher duty and responsibility than to do so.”   Yet hundreds of employees at impacted agencies have signed letters expressing their opposition to the Executive Order.  The examples of conflicting opinions are too numerous to list here, but are an indicator of how uncertain this situation remains.

U.S. Department of State (DOS)

DOS has confirmed that assuming there are no other issues in the case, provisionally revoked visas have been reversed and are once again valid for travel.

U.S. Customs And Border Protection (CBP)

All CBP Field Offices have been instructed to immediately resume inspection of travelers under standard policies and procedures.  All airlines and terminal operators have been notified to permit boarding of all passengers without regard to nationality.

Individuals who arrived last weekend and had their visas physically cancelled in their passport as a result of the EO will not need to reapply for a new visa.  Again, absent any other admissibility issues, they will receive an I-193 waiver (Application for Waiver of Passport and/or Visa) upon arrival to the U.S.  For those traveling by air, airlines have been instructed to contact CBP to receive authorization to permit boarding.

U.S. Citizenship and Immigration Services (USCIS)

U.S. Citizenship and Immigration Services (USCIS) is the agency within the Department of Homeland Security which adjudicates immigration benefits.  This includes petitions and applications such as I-130 family based immigrant petitions, I-140 employment-based immigrant petitions, I-485 applications for adjustment of status, I-129 petitions for nonimmigrant worker, N-400 applications for naturalization, etc.   USCIS’ role is different than that of the other immigration-related agencies, which control issuance of travel documents to the U.S. and admission to the U.S.

On February 2, 2017 USCIS issued a Memo regarding how the January 27, 2017 EO applies to its operations.  Although the below USCIS statement preceded the suspension of the travel ban, its message is still both relevant and important.   The USCIS Memo confirms the Executive Order does NOT affect:

–        “USCIS adjudication of applications and petitions filed for or on behalf of individuals in the United States, regardless of nationality” (emphasis added)

–        “Applications and petitions by Lawful Permanent Residents who are outside the U.S.”

–        “Applications and petitions for individuals outside the U.S. whose approval does not directly confer travel authorization (including any immigrant or nonimmigrant visa petition)”

The Memo  also specifically states that I-485 Applications for Adjustment of Status to that of Permanent Resident “may continue to be adjudicated, according to existing policies and procedures, for applicants who are nationals of countries designated in the Executive Order.” (emphasis added)

LAC:   Please note that the underlined language is significant.  Since 2008, USCIS has implemented a program called CARRP (Controlled Application Review and Resolution Program).  It is a formal, documented, program which delays and denies Adjustment of Status and Naturalization cases of applicants the agency believes may be national security threats.  The CARRP training manual specifically states that in certain situations, the adjudicating officer should find a way to deny the application if possible, and if it cannot be denied on any legal ground, forward it to headquarters where it is generally held in abeyance.  Therefore, the USCIS memo should not be viewed as a circumvention of the Executive Order, should the Order be reinstated.  However, it does provide some reassurance, given that the language of the EO with regard to benefits adjudications was vague, and it was rumored that it would completely stall adjudications at USCIS.

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