On March 6, 2017, President Trump signed a revised Executive Order, Protecting The Nation From Foreign Terrorist Entry Into The United States, that suspends admission to the United States for certain foreign nationals from the following six designated countries for 90 days: Iran, Libya, Somalia, Sudan, Syria, and Yemen. Iraq is no longer included in the list of designated countries as it had been in the original executive order (EO). The 90-day period of suspension may be extended, and the order establishes a process by which other countries can be added to the list of designated countries. The EO will go into effect on March 16, 2017, at 12:01 a.m. and rescinds the prior order once effective.
Who Is Affected?
Foreign nationals from the six designated countries who are outside the United States and either do not have a currently valid visa or did not hold a valid visa on January 27, 2017 will not be able to travel or request admission to the United States.
The order also suspends refugee admissions and adjudication of requests for refugee status from all nationals of all countries for a period of 120 days from the effective date of the order. Refugee applicants who were formally scheduled for transit prior to the March 16, 2017, effective date are allowed to travel and request admission to the United States. The order limits the total number of refugees able to be admitted to the United States for fiscal year (FY) 2017 to 50,000.
Who is Exempt?
At this time, the EO only limits the ability to request admission to the United States to the narrow category of foreign nationals described above. The following foreign nationals remain eligible to request admission to the United States:
- foreign nationals from one of the six designated countries who hold a currently valid visa;
- foreign nationals from one of the six designated countries who held a valid visa on January 27, 2017 (the order instructs that foreign nationals whose visa was revoked or marked canceled based on the prior version of this Executive Order are entitled to request a travel document that confirms they are permitted to travel to the United States and request admission);
- lawful permanent residents;
- foreign nationals who are admitted or paroled into the United States on the effective date of this order;
- foreign nationals who hold a document other than a visa that is valid on the effective date of the EO or is issued after the EO that permits travel and the ability to request admission to the United States, including advance parole documents;
- a dual national of a designated and non-designated country traveling on a passport from a non-designated country;
- foreign nationals from the six designated countries who apply for diplomatic or diplomatic-type visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, or G-1, G-2, G-3, or G-4 visas; and
- any foreign national granted asylum; any refugee already admitted to the United States; and individuals granted withholding of removal, advance parole, or protection under the Convention Against Torture.
Is a Waiver Available?
The EO permits a foreign national from a designated country whose admission is suspended to apply for a waiver of the suspension. Waivers are granted at the discretion of the U.S. Department of State Consular Officer and U.S. Customs and Border Protection (CBP), on a case-by-case basis, for a foreign national who has demonstrated to the consular officer or CBP officer’s satisfaction that denying entry during the suspension period would cause undue hardship and that his or her entry would not pose a threat to national security and would be in the national interest. Any waiver issued by a consular officer as part of the visa issuance process will be effective both for the issuance of a visa and any subsequent entry on that visa.
Suspension of Visa Interview Waiver Program
In addition to the temporary admission ban, the executive order directs the State Department to suspend the Visa Interview Waiver program that had previously been available for renewing visas at certain U.S. consulates. As such, foreign nationals from countries not listed above—and who need to renew their visas if traveling abroad—should expect considerably longer wait times for appointments at these consulates, and any travel plans should take into account additional processing times for visa issuance.
Prior Executive Order Rescinded
The prior executive order, which was issued on January 27, 2017, is revoked as of the effective date of the revised order—March 16, 2017.
Ogletree Deakins’ Immigration Practice Group will continue to monitor developments with respect to President Trump’s executive orders regarding immigration and post updates as additional guidance becomes available.