On March 6, 2017, President Trump signed a follow-up Executive Order (EO) revoking the original travel ban of January 27, 2017. The President tailored his new Executive Order to fit within the acceptable parameters laid out in accordance with the TRO issued in Washington State Federal Court and upheld by the Ninth Circuit Court of Appeals.
There is no doubt that there will also be legal challenges to this new executive order, but this action is a clear attempt to cure the deficiencies of the previous order. This order states it was prepared in consultation with several government agencies, including the Department of Homeland Security, the Secretary of State and the Director of National Intelligence.
What are the Key Provisions of the New Executive Order?
The new order reduces the number of countries in the ban to six, excluding Iraq. The EO imposes restrictions on visa issuance and admission to the United States of individuals from certain identified countries, specifically Iran, Libya, Somalia, Sudan, Syria and Yemen. The reason given is "in order to protect (US) citizens from terrorist attacks including those committed by foreign nationals." It also proposes to review and improve "screening and vetting protocols and procedures associated with the visa issuance process and the U.S. Refugee Admission Program." The consequence of the new EO is the significant curtailment of entry of nationals of the six countries to the United States.
The travel ban specifically exempts all green card holders and current U.S. nonimmigrant visa holders from the six enumerated countries.
The travel ban further specifically excludes the following persons:
- Any foreign national who is admitted to or paroled into the United States on or before the effective date of the order;
- Any dual national of one of the six countries designated in the travel ban when that individual travels to the USA on a passport issued by a non-designated country;
- Any foreign national traveling on a diplomatic or diplomatic type visa, North Atlantic Treaty Organization visa, C-2 visa for travel to the UN, or G-1, G-2 G-3 or G-4 diplomatic visa; or
- Any foreign national who has been granted asylum; any refugee who has already been admitted to the USA; or any individual who has been granted withholding of removal, advance parole or protection under the Convention against Torture.
Further, the travel ban permits an allowance for waivers in individual cases. Waivers are available and determinations granted on a case-by-case basis if certain conditions are met. Waivers may be granted on a one-time entry basis, or for subsequent entries. It is within the discretion of a consular official to issue the waiver and is further dependent on rules of diplomatic reciprocity between the United States and the country in question.
Waivers would be granted under the following conditions:
- Denying entry during the period of the ban would cause undue hardship,
- The person's entry would not pose a threat to national security, and
- The person's entry would be in the national interest.
Effective Dates of the Order
The effective date of the ban is March 16, 2017. It will last for 90 days, to June 14, 2017, at which time the ban will be revisited for the purpose of determining whether it should be revoked or expanded to include additional countries. The EO does contemplate that the U.S. Departments of Homeland Security and Department of State will conduct a worldwide review to identify whether, and if so, what additional information will be needed from each foreign country to adjudicate an application to determine that specific individuals are not a security or public safety risk.
In addition to the travel ban, the executive order both "realigns" and actively suspends, for a temporary period of 90 days the number of refugees admissible to the United States. It also reduces the number of refugees admissions to the USA to 50,000 on an annual basis for 2017 unless the President determines that additional entries would be in the national interest. All refugees being processed abroad and seeking admission to the United States are impacted. Syrian refugees are no longer singled out for an indefinite ban.
Elimination of Mailed in Visa Applications or "Drop Box" Applications
Similar to the first EO, this EO eliminates the ability of individuals to apply for their visas without an in-person interview. In the past, some individuals -- repeat applicants for visas and those of advanced age -- could mail in their passports to a U.S. consulate abroad and use a "drop box" system when applying for nonimmigrant visas. This interview waiver program has been suspended with limited exceptions.
The suspension of the in-person visa waiver interview process will likely have significant impact on consular officials and will result in longer waits to schedule nonimmigrant visa appointments and receive passports with visa endorsement in return from consular posts. It is anticipated that there will be a significant slowdown in the process to obtain U.S. nonimmigrant visas globally.
The U.S. Visa Waiver Program - ESTA Is Not Affected
The Visa Waiver Program (VWP) which allows citizens of 38 countries to travel to the United States remains in effect. Citizens of most European countries and others, including Japan, Singapore, Australia and New Zealand may still seek admission to the United States on the basis of their passports and an ESTA clearance. ESTA information and applications may be accessed here.
Implications for Employers
While this new order, which has narrowed the class of foreign nationals affected, is less controversial in scope than the prior order, many advocacy groups have threatened to challenge any immigration restrictions whatsoever. With one TRO already successfully entered against the prior order, employers should continue to monitor legal developments related to this new order. Employers should also monitor developments from the Trump Administration on changes in immigration policies. We recently reported on the U.S. Citizenship and Immigration Services (USCIS) announcement of the suspension of premium processing for all H-1B petitions commencing April 3, 2017.