New developments following Executive Order of 1/27/2017 banning entries into United States by nationals of seven countries

News Release from Jewell Stewart & Pratt – January 30, 2017 As reported in our most recent post, an Executive Order signed by President Trump on Friday, January 27, 2017 bans immigrant and nonimmigrant entries into the United States, for at least 90 days, by nationals of seven countries – Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen. Other countries may be added to the list and adjudications of other immigration benefits could be affected. (The Executive Order is also targeted at refugee admissions, with longer bans; however, our posts for the time being are focused on immigrant and nonimmigrant visa provisions.) The Executive Order has been challenged on legal and constitutional grounds, and further lawsuits are expected, as well as legislation that will be introduced in both houses of Congress to overturn the bans.

The ACLU obtained a court order staying enforcement of the Executive Order on Saturday 1/29/2017. However, the stay only applies to a narrow class of migrants and news reports suggest that not all Customs & Border Protection personnel are complying with it. Meanwhile, there are unconfirmed reports circulating that adjudication by USCIS of applications for visa-related “benefits” may have been halted for applicants and beneficiaries from the seven countries. This would include naturalization applications, adjustment-of-status applications, I-140 immigrant petitions, H-1B petitions, and other applications and petitions within USCIS’s jurisdiction. Although the Executive Order of 1/27/2017 appeared to be potentially expandable to "benefits," not just entries, it did not order a ban on adjudications of benefits applications. That this appears to be happening anyway suggests that another, more comprehensive policy statement may be imminent.

Because of the Executive Order, we strongly advise that individuals with past or present citizenship or birth ties to any of the listed countries who live, study, or work in the U.S. not travel outside the U.S. without first consulting an immigration expert. The Department of Homeland Security clarified on Sunday 1/29/2017 that lawful permanent residents of the United States (i.e., green card holders) would qualify for a “national interest” exception in the Executive Order; however, having a green card still does not guarantee admission back into the United States of citizens from the seven countries. Green card holders (which the administration apparently intends to mean only those individuals who are already U.S. permanent residents and are in physical possession of unexpired green cards) reportedly are being allowed to board U.S.-bound aircraft, but on arrival at the U.S. port of entry, they are being “assessed” for national security concerns and granted a “waiver” of the executive order on a case-by-case basis.

Individuals who are from of one of the seven countries and who wish to enter the United States in nonimmigrant status (e.g., B, F, H, I, J, L, O, TN, etc.) are not being allowed to board flights to the United States. If they had visa appointments at U.S. consulates, those appointments have been cancelled. Their visa applications will not be processed, even if the application is for a visa classification the individual already held in the United States and the visa is needed only to return from a trip abroad.

This is a rapidly evolving situation, and there is a lack of clarity regarding key terms. For example, the ban refers to individuals “from” the seven countries, and this could include citizens and nationals of those countries, holders of passports from those countries, and individuals who are dual citizens of one of the seven countries and any other country outside the United States (or, in an extreme scenario apparently not contemplated by the Executive Order – though it could be – dual citizens of one of the listed countries and the United States itself). The ambiguous drafting of the Executive Order and the reported differences in how it is being applied by CBP at ports of entry have made it difficult to say with certainty who “from” one of the listed countries will be allowed entry.

There is a chance the list of seven countries will be expanded, and that the bans will be not only to entry, but – as already appears to be happening – to other immigration “benefits,” which could include extensions-of-stay, change-of-status, adjustment of status, etc. Moreover, it is important not to forget that a federal regulation pre-dating the Executive Order bars the entry of visitors to the United States under the Visa Waiver Program (ESTA) to anyone who travels to the designated countries, even if they are not a citizen or national of those countries.

The ambiguities in the Executive Order’s language and the changing and inconsistent application are cause to get advice from an immigration expert regarding questions about whether one’s nationality, country of birth, country of residence, or travel history would make them subject to the ban on entry, or eligible for relief from the ban.

© Jewell Stewart & Pratt PC 2017