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New Executive Order Significantly Modifies Previous Travel Ban

6 Mar

On March 6, 2017, President Trump signed a new Executive Order replacing the original order signed on January 27, 2017, which temporarily banned travel to the United States by foreign nationals from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen. In litigation challenging that original order, the U.S. District Court in Washington issued a nationwide Temporary Restraining Order (TRO) that halted its enforcement. The U.S. Court of Appeals for the 9th Circuit subsequently upheld the TRO.

This new Executive Order has been issued in an effort to address the Court’s U.S. Constitutional concerns with the original order. Specifically, the court was concerned with an Establishment Clause violation in connection with the banning of travelers from countries that have a majority Muslim population. The court also noted due process concerns in the enforcement of the executive order against U.S. lawful permanent residents.

The Executive Order, entitled “Executive Order Protecting The Nation From Foreign Terrorist Entry Into The United States,” is set to take effect on March 16, 2017.

Citizens of Iran, Libya, Syria, Somalia, Sudan, and Yemen, which were included in the original ban, will once more be subject to a 90-day travel ban. Iraq has been removed from the original list of countries whose nationals were subject to the ban. The U.S. Refugee Admissions Program (USRAP) will also be suspended for a period of 120 days. Unlike the previous order, this new Executive Order does not give priority to religious minorities, and Syrian refugees have not been specifically targeted.

It is clear from the text of the Executive Order that the travel ban does not apply to U.S. lawful permanent residents (“green card” holders), or to those who already have valid visas for entry into the United States. Additionally, certain individuals already present in the United States pursuant to lawful student or temporary worker status are also exempt from the new Executive Order. Dual nationals, of an affected country and a country not subject to the order, will also not be subject to the ban when traveling on the unaffected passport with the appropriate entry documents. This was not clear in the text of the original travel ban, nor uniformly implemented by the U.S. Department of State in consular visa matters, U.S. Citizenship and Immigration Services in the adjudication of immigration benefits, or Customs and Border Protection (CBP) at ports of entry to the U.S. Additionally, the new Executive Order provides for exceptions, or “waivers”, at the discretion of a consular officer to authorize visa issuance or a CBP officer to permit the entry of a foreign national otherwise subject to the ban.

In a prepared statement, U.S. Secretary of Homeland Security John Kelly affirmed that “The Executive Order signed today is prospective in nature—applying only to foreign nationals outside of the United States who do not have a valid visa. It is important to note that nothing in this executive order affects current lawful permanent residents or persons with current authorization to enter our country.”

It is too early to determine whether this new, more limited order that exempts U.S. lawful permanent residents might be subject to new litigation. Foster will continue to monitor the impact of, and reaction to, this new Executive Order and will provide updates as they become available via Foster’s website at www.fosterglobal.com, and via future Immigration Updates©.