President Donald Trump signed a third Executive Order titled “Protecting the Nation from Foreign Terrorist Entry into the United States” on January 27, 2017 that revises immigration rules. The provisions of this order, effective immediately, will have the following effects:
- For at least 90 days, ban immigrant and nonimmigrant entry into the United States for nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. Visa issuance will also be suspended for nationals of these countries. Exceptions to this rule will be explained below. While the initial period of the ban is set for 90 days, it is not automatically lifted. Lifting the ban requires several steps as outlined in the Executive Order.
- The ban affects individuals from the impacted countries intending to enter the U.S. with nonimmigrant (temporary) and immigrant (permanent) visas, as well as those attempting entries with advance parole.
- U.S. Department of Homeland Security Secretary John Kelly announced that U.S. lawful permanent residents[1] will be “assessed for exceptions” to the entry ban at U.S. ports of entry. Green card holders should expect additional scrutiny, background checks and questioning in secondary inspection at ports of entry.
- Implement new vetting standards for immigrant and nonimmigrant visas.
- For 120 days, suspend all refugee admission.
- Reduce number of refugees to be admitted in FY 2017 to 50,000.
- State and local jurisdictions will be given the opportunity to determine the placement or settlement of refugees into their jurisdictions.
- Suspend Syrian refugee admission indefinitely until further notice.
- Complete the biometric entry-exit tracking system.
- Eliminate the Visa Interview Waiver Program with limited exceptions.
- Review the visa reciprocity schedule and change as necessary.
- Be more transparent in issuing reports to the public on certain matters.
I. Visa Issuance and Travel Ban
The Executive Order sets forth that Homeland Security Secretary Kelly, along with Secretary of State Rex Tillerson and the Director of National Security Agency Michael S. Rogers, will be tasked with conducting investigations as to the information needed from a list of countries to strengthen the U.S. visa issuance process at U.S. consulates and embassies around the world. The information will then be compiled into a report to be submitted to President Trump 30 days from the issuance of this Executive Order. Once the report has been submitted, Secretary of State Kelly will contact those foreign governments where information is needed and request such information be returned within 60 days. After the 60-day period has expired, those countries that have not supplied the information will immediately have all entry banned for the nationals of those countries. Exceptions will be made for individuals who are traveling on diplomatic visas, NATO visas, C-2 visas, and G-1, G-2, G-3, and G-4 visas.
While this investigation is ongoing, immigrant and nonimmigrant entry into the United States has been temporarily suspended for 90 days from the date of the Executive Order, for aliens from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen[2]. Exceptions are made for individuals who are traveling on diplomatic visas, NATO visas, C-2 visas, and G-1, G-2, G-3, and G-4 visas.
The Executive Order also includes language allowing for the secretary of state or the homeland security secretary to submit to President Trump additional countries recommended for travel ban for its aliens as well. In addition, the Executive Order has text that explicitly states exceptions may be made on a case-by-case basis, and based on the national interest, to issue a visa to nationals of countries where entry is blocked. Additional reports (four in total) are due to President Trump every 30 days from the date of the Executive Order to document the progress of this initiative.
II. Implementing Vetting Standards for Immigrant and Nonimmigrant Visas
The Executive Order calls for the implementation of a program by the secretary of state, the homeland security secretary, the director of national intelligence, and the director of the Federal Bureau of Investigation, effective immediately to develop a uniform screening standard and procedure that includes a database of identity documents to ensure duplicate documents are not used; require in-person interviews; amend questions on application forms to identify fraudulent answers; and ensure the applicant wishing to enter the United States will not cause harm. Three reports are required by the agencies to monitor this process, the first within 60 days of the Executive Order, the second within 100 days of the order, and the third within 200 days of the order.
III. Suspension of Refugee Program
The U.S. Refugee Admissions Program (USRAP) is suspended for 120 days from the date of the Executive Order so the secretary of state, along with the homeland security secretary and the director of national intelligence, can review the USRAP application and adjudication process to change anything necessary. Refugee applicants who are already in the process may be admitted upon completion and availability of the revised procedures. After 120 days from the date of the Executive Order, refugee admissions under USRAP will only be for nationals of countries as determined by the homeland security secretary and the director of national intelligence. At such time, applications by refugees based on religious-based persecution will be prioritized, if the religion is a minority religion in the individual’s country of nationality. Case-by-case admissions of refugees may be allowed in the discretion of the secretary of state and homeland security. In addition, any refugee admission over 50,000 will not be allowed in fiscal year 2017.
IV. Suspend Syrian Refugee Admission Indefinitely until Further Notice
Refugee admission for Syrian nationals is suspended indefinitely until further notice.
V. Complete the Biometric Entry-Exit Tracking System
The Executive Order includes text to expedite the completion and implementation of a biometric entry-exit tracking system for all immigrant and nonimmigrant travelers to the United States. Reports on the progress of this initiative are due to President Trump within 100 days of the Executive Order having been signed, a second within 200 days, and a third within 365 days. Additional reports will need to be submitted within 180 days thereafter until the system is fully operational and deployed.
VI. Eliminate the Visa Interview Waiver Program Except in Some Cases
Waivers for visa interviews at U.S. consulates and embassies abroad are suspended except for the following exceptions:
- Diplomatic and official visa applicants from foreign governments and international organizations (A-1, A-2, G-1, G-2, G-3, G-4, NATO-1 through -6, C-2, and C-3)
- Applicants under the age of 14, or over the age of 79;
- Applicants renewing their visas in the same category, where their prior visa expired less than 12 months prior to the new application.
VII. Review the Visa Reciprocity Schedule and Change as Necessary
The Executive Order tasks the secretary of the U.S. Department of State with the review of the nonimmigrant visa reciprocity schedule and the visa reciprocity for U.S. citizens when applying for travel to foreign countries. This includes the visa fee, duration of time issued for the visa, and other provisions. Based on the findings, the secretary of state is requested to adjust the terms of the visa reciprocity schedule based on the findings.
VIII. Transparency in Issuing Reports to the Public on Certain Matters
The homeland security secretary, along with the attorney general, are tasked with publishing reports every 180 days to the public on the following matters:
- Information regarding the number of foreign nationals in the U.S. who have been charged, convicted, or removed from the U.S. with terrorism-related offenses;
- Information regarding the number of foreign nationals who have been radicalized since entering the U.S.
- Information regarding acts of gender-based violence against women;
- Any other information that relates to the safety of the U.S. public.
Additional agency and legal challenges are pending, which may change or add to the scope of the Executive Order. Developments will be updated on a timely basis.
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[1] In addition, Consular Posts have been instructed to cease nonimmigrant and immigrant applications and USCIS has ceased adjudicating applications for immigration benefits for the nationals of the impacted countries.
[2] Note that various ports of entry and consular posts have defined “nationals” differently. Customs and Border Protection (CBP) has stated that foreign nationals entering with a passport of a non-impacted country will be admitted, whereas some consulates will not process applications of those who hold passports of both an impacted country and a non-impacted country.
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