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President Trump Signs Revised Executive Order on Travel Ban

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President Trump Signs Revised Executive Order on Travel Ban

March 6, 2017

Today President Trump signed an Executive Order replacing his previously issued travel ban on travelers from certain Muslim-majority countries.  The new Executive Order (EO), designed to overcome legal challenges which the first version faced, includes the following measures which take effect on March 16:

  • a 90-day travel ban on citizens and nationals from the following 6 countries: Iran, Libya, Somalia, Sudan, Syria, and Yemen (Iraq was removed from the ban; see exclusions below);
  • a 120-day ban on the U.S. refugee program

Furthermore, the EO calls for:

  • implementation of uniform screening and vetting standards for all immigration benefits
  • expedited establishment of a biometrics entry/exit tracking system
  • reducing the number of refugee admissions for this fiscal year from 110,000 to 50,000
  • suspension of the Visa Interview Waiver Program (not to be confused with the visa waiver program)
  • reviewing current visa reciprocity arrangements to ensure true reciprocity with other countries

In addition, today’s EO states that the Department of Homeland Security (DHS) will perform an immediate (within 20 days) country-by-country review of the identity and security information that each country provides to the U.S. to support U.S. visa and other immigration benefit determinations. Countries will then have 50 days to comply with requests from the U.S. to update or improve the quality of the information they provide.  After that, based on the responses the U.S. may add to the list of countries whose citizens and nationals are banned from the U.S. or who will be subject to additional levels of screening. 

In order to be “more transparent with the American people and to more effectively implement policies and practices that serve the national interest, DHS will make information available to the public every 180 days:”

  • the number of foreign nationals who have been charged with terrorism-related offenses while in the United States;
  • the number of foreign nationals who have been “radicalized” and engaged in terrorism-related acts or provided “material support” to terrorism-related organizations;
  • the number of gender-based killings (“honor killings”) in the U.S.
  • other information, including the immigration status of foreign nationals charged with “major offenses” in the U.S.

Exclusions to the travel ban: 

The new EO specifically states that the travel ban does not apply to the following:

  • lawful permanent residents
  • foreign nationals admitted or paroled in to the U.S on or after the effective date of the order or later
  • individuals already in possession of a valid U.S. visa or U.S. travel document
  • dual nationals travelling with a passport issued by a non-designated country
  • individuals already granted asylum or refugee status before the effective date of the order
  • individuals travelling on diplomatic, NATO, C-2, G-1, G-2, G-3 or G-4 visas

The new EO also states that any individuals whose visa was revoked following and due to the January 27 EO should be issued a travel document permitting that individual to travel to the U.S.

In addition, the DHS and the Department of State have the discretionary authority, on a case-by-case basis, to issue visas or allow the entry of nationals of the six countries into the United States when a national from one of the countries demonstrates that the denial of entry would cause undue hardship, that his or her entry would not pose a threat to national security, and that his or her entry would be in the national interest. Criteria to be considered include: previous visits to the U.S.; significant contacts within the U.S.; close family relationships in the U.S.; and humanitarian concerns.

What this means to U.S. employers:

Employees holding permanent resident status, even if from one of the 6 listed countries, should be able to travel internationally and return to the U.S., subject to normal admission requirements.  Please note that for foreign nationals from one of the designated countries who possess valid visa stamps, additional screening upon return to the U.S. may be instituted so non-essential travel is discouraged.  If an employee does not hold a currently valid visa stamp, we recommend that he or she remain in the U.S. if from one of the 6 designated countries.  Furthermore, due to potential additional vetting, if any foreign national employee has travelled to one of the 6 designated countries, for now we recommend against departing the U.S.

In addition, according to today’s EO, the Visa Waiver Interview Program for all foreign national employees is suspended.  This means that all nonimmigrants, no matter the country of origin, applying for a visa stamp will be subject to an in-person interview and screening.  This provision was included in the previous EO yet anecdotal evidence suggests that the drop box process in many countries, such as India, continued even after the initial EO was signed.  It is not clear if the drop box program will now be cancelled. 

Finally, the EO provisions relating to worldwide uniform screening and vetting standards, a biometrics entry and exit tracking system, and review of visa reciprocity is likely over time to affect all foreign nationals.  As these measures get implemented, we anticipate delays in the issuance of visa stamps and the admission/departure process. 

The Trump Administration has indicated it is working on a separate Executive Order relating to work visas, though no set time frame for its release has been established. 

Weaver Schlenger LLP will monitor further developments relating to the new and upcoming Executive Order and continue to update our website.  

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