by Dinh Tran, Partner, Queen City Immigration Law. 704-500-2075
On March 6, 2017, President Trump issued a new Executive Order entitled "Executive Order Protecting The Nation From Foreign Terrorist Entry Into The United States." If this title sounds familiar, it is because this title was also given to the Executive Order 13769 that was issued on January 27 and which imposed a travel ban on the nationals of seven Middle Eastern and Northern African countries with a Muslim majority. That EO was promptly challenged in courts nationwide and enjoined by several District Courts as well as the Federal Court of Appeals for the Ninth Circuit. Facing a losing battle in court, the President decided to withdraw the previous EO and issue this new one in its stead, with certain modifications.
The new Executive Order still imposed a temporary 90-day travel restriction on the nationals of the six out of the original seven countries. The country that was removed from the list is Iraq due to "the close cooperative relationship between the United States and the democratically elected Iraqi government, the strong United States diplomatic presence in Iraq, the significant presence of the United States forces in Iraq, and Iraq's commitment to combat ISIS." However, this time around, the EO provided clearer guidance on which groups of individuals are affected by the travel suspension.
First, the only group that has been prohibited from entering the United States and obtaining a visa are those individuals who are nationals of the six countries: Iran, Somalia, Sudan, Syria, Libya and Yemen; and 1) who were outside the United States on March 6, the effective date of the new Executive Order, 2) did not have a valid visa at 5:00 pm EST on January 27, 2017, and 3) did not have a valid visa on the effective date of the Order.
Second, the travel suspension does not apply to lawful permanent residents of the United States, individuals who are subsequently allowed to enter or are paroled into the United States, people with travel documents other than a visa (such as advance parole), dual nationals if they are traveling on a passport issued by a non-restricted country, members of foreign diplomatic missions, and people granted asylum or refuge.
Additionally, border and consular officers also have the ability to waive the applicability of the EO with respect to affected individuals on a case-by-case basis if the issuance of a visa or permission to enter would not pose a threat to national security and would be in the national interest. Some of the cases when a waiver could be appropriate include circumstances where the foreign national has previously been admitted to the United States to work, study, or perform some other long-term activity, was outside the United States on March 6, and seeks to reenter to resume such activity; the refusal to allow the foreign national to reunite with a close family member who is a U.S. citizen or a lawful permanent resident would cause undue hardship; the foreign national is an infant, a young child or adoptee, an individual needing urgent medical care; the foreign national is traveling as a U.S. Government-sponsored exchange visitor.
The Executive Order also again suspended accepting refugees and processing their applications for 120 days as well as limit the number of refugees in the fiscal year 2017 to 50,000, mirroring the January EO. The minor tweaks included removing a flat ban on granting refugee status to Syrians and deleting the provision which granted Christian refugees special consideration for exemption from the suspension. As with the travel ban, this suspension leaves a little bit of discretion to the relevant Executive Departments to admit individuals as refugees on a case-by-case basis if such entry is in the national interest and does not pose a threat to the security or welfare of the United States.
Besides the clarifications on the applicability of the travel suspension on certain groups of individuals and some other minor modifications, the new Executive Order is a reiteration of the January EO which was fiercely attacked by immigration advocates and quickly enjoined by the courts. It remains to be seen, therefore, how all the amendments will help this new version deal with legal challenges in court when it becomes effective at 12:01 am on March 16, 2017.
This article is not legal advice. If you are a citizen or national of the seven designated countries and planning to travel internationally, please seek legal advice of an immigration attorney.