Update: Travel Implications of Executive Order

15:10 31 January in News Updates

The Draft Executive Order referenced in our advisory of Friday, January 27, 2017

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

was in fact executed later that day

The content of the Executive Order (EO): “Protecting the Nation from Foreign Terrorist Entry in the United States,” was substantially similar to the draft version.  There were no significant substantive changes, other than the removal of the provision which directed the Secretaries of State and Defense to establish a place to provide safe areas in Syria and in the surrounding region in which Syrians could await firm resettlement.

LAC understands the tremendous anxiety these developments have caused many foreign nationals and their families.
The EO has also caused employers uncertainty and in some cases interrupted business operations.  

We feel deeply for our clients and are committed to assisting in any way possible.  

To answer the main questions we are receiving:

Q1:  I was not born in nor do I hold a passport from Iran, Iraq, Libya, Somalia, Sudan, Syria, or Yemen.  Does this Executive Order apply to me?

In addition to those directly impacted by the Executive Order, we have received many questions from individuals of other nationalities asking if it is safe for them to travel internationally.

While the travel ban applies only to those “from” the 7 designated countries, the suspension of the nonimmigrant visa interview waiver program; the additional screening; and general state of confusion is very likely to cause travel delays for the foreseeable future.   Except for the delays, most individuals from non-designated countries should be able to travel without issue, ASSUMING that additional nationalities are not banned.  

Please note that the application of the ban to those with dual nationality (for example, a Canadian citizen who was born in Iran) is still uncertain.   It appears that if the Canadian passport is presented for admission to the U.S., the ban would not apply to that individual.  However, there is a good deal of uncertainty right now, as well as lack of consistency with individual ports of entry and CBP Officers, who received no guidance prior to issuance of the EO.  We expect that such individuals are likely to be admitted, but only after going through (what may be a prolonged) Secondary Inspection.

Q2.  Can you guarantee I won’t have a problem traveling?   Is it safe for me to book my travel for X date?
We really wish we could provide some degree of certainty.  However, unfortunately we are never in a position to guarantee admission to the US; US Customs and Border Protection has the ultimate discretion in that area.  Also, with the current state of confusion, the changes in law and policy which are occuring literally every few hours, and the possibility of additional Executive Orders, we can only provide updates as to the current state of the law and policy.  We cannot predict what the situation will look like in a few days, or a few months.  If you choose to travel internationally, please weigh these factors to make the best decision for you and your family.

Q3:   What should we expect after the 90-day initial travel restriction passes?

After 90 days, travel is not automatically reinstated.  Instead, per the EO, 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.

There have already been some changes since the initial implementation of the EO, and several injunctions and lawsuits have already been issued.  Therefore, the answer to this question may change.  This is a very fluid situation, which we will continue to monitor.  For the updates over the weekend, please see below.

Updates 1/28/17:

Courtesy of the American Immigration Lawyers Association (AILA Doc. No. 17012670)

AILA has received the following clarifications from DHS. However, reports from AILA members indicate that policies are not being implemented consistently on the ground. Please note that the situation is fluid, and may change at any time.

  • DHS is currently implementing the travel ban. This was confirmed in media reports, as well. Headquarters is planning to issue public guidance, though we do not know when it will be released.
      • The Executive Order applies to all individuals “from” the 7 designated countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. That includes Legal Permanent Residents (LPRs), nonimmigrant visa holders, immigrant visa holders, refugees, derivative asylees, Special Immigrant Visas (SIVs), etc.
      • Anyone who holds a passport from a designated country is considered as being “from” the designated country.  This includes dual citizens who hold passports from a designated country, as well as a non-designated country.  
      • CBP will be processing people based on how they present themselves at primary inspection.
      • The Executive Order does NOT apply to people who merely traveled to designated countries.
      • Legal Permanent Residents: There appears to be some limited discretion for DHS to admit LPRs on a case-by-case basis, and following a thorough security review. LPRs will be allowed to board planes. Their cases will be adjudicated at the port of entry.
      • Nonimmigrants: Nonimmigrants will be allowed to withdraw their application for admission.  Expedited removal will generally only be used for those individuals who do not wish to withdraw their application for admission.”

Update 1/29/17:   U.S. Lawful Permanent Residents “from” Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen

John Kelly, Secretary of the Department of Homeland Security, issued a statement confirming that the Department considers the admission of U.S. Lawful Permanent Residents (green card holders) from the designated countries to be “in the national interest.”  In other words, unless there is another issue precluding their admission to the U.S., green card holders should be re-admitted to the U.S., despite the travel ban.


Update 1/29/17:   Refugees in transit to the U.S.

The Executive Order suspends travel to the U.S. for refugees from the 7 designated countries. The exception for refugees that are currently “in transit” found in Section 5(e) of the Executive Order does not apply to people from those designated countries.  Refugees from other countries that had been scheduled to arrive in the next few days should be allowed entry to the U.S. upon arrival. There were reportedly no refugees scheduled to travel over the weekend.

1/29/17:   Status of Legal Actions in Response to Executive Actions

Courtesy of AILA

Last night, lawyers filed actions across the country to halt the January 27 EO. A federal judge in the Eastern District of New York issued the first order, granting a nationwide stay of removal preventing deportation for individuals with valid visas and approved refugee applications affected by the EO. The next decision came out of a federal court in Massachusetts – it went a bit further and barred federal officials from detaining or removing individuals subject to the EO. Two other courts also issued rulings. In a case filed in Virginia, the court ordered federal officials to provide lawyers access to “all legal permanent residents being detained at Dulles International Airport” and barred officials from deporting covered individuals for the next seven days. In the case out of Washington State, the federal judge barred the federal government from deporting two unnamed individuals from the United States.

Lawyers in the New York case are seeking clarification from the court.

The Department of Homeland Security put out a statement early today stating only that the agency “will comply with judicial orders.”

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