President Trump issued an Executive Orders (EO) titled “Protecting the Nation from Foreign Terrorist Entry into the United States” on January 27, 2017. This is one of three immigration-related EOs issued between January 25 and January 27. This EO in particular has implications for ALL international travel to the US by foreign nationals. This alert addresses these international travel implications.

Key Travel-Related Provisions

The main travel-related provisions which will have broad impact are:

  1. A 90-day suspension of issuance of visas and immigration benefits (including entry) to nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.
  2. Suspension of the Visa Interview Waiver Program.

This EO also contains a 120-day suspension of all refugee admissions and an indefinite suspension for Syrian refugees.

90-day Entry and Benefits Suspension for Nationals of Designated Countries

The 90-day suspension for nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen created havoc this past weekend and manifested multiple legal challenges that are ongoing. These challenges resulted in a temporary stay of a limited portion of the EO. The stay only prohibits the deportation/removal of those foreign national passengers who were detained at airports across the US during the first days following the issuance of the EO. The rest of the EO remains in effect.

With very limited exception, the travel ban applies to ALL non-US citizens holding a passport issued by a listed country, as well as anyone who was born in one of the listed countries. (Including dual nationals who also hold passports of countries not included in the ban.) The ban is based on citizenship and nationality; it is not tied to the country of departure or the country to which the individual has traveled.

The ban provides exceptions only for Diplomats (A), International Organization (G), and NATO and UN Transit (C-2) visa holders. All other US immigration categories are included in the ban, even US lawful permanent residents (Green Card holders or LPRs). With respect to LPRs, on January 29, the Department of Homeland Security (DHS) Secretary, John Kelly, announced that the entry of LPRs is deemed to be in the national interest. The DHS announcement stated: “… absent receipt of significant derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status will be a dispositive factor in our case-by-case determinations.”

This means that LPRs are still included in the ban, but are deemed eligible for a case-by-case waiver of the entry prohibition. When returning to the US, these individuals will have to undergo a secondary immigration screening process which carries an increased travel risk. Thus, at this early stage, caution and the avoidance of optional travel is advised even for LPRs who are citizens or nationals of the designated banned countries.

Visa Suspension and Return Travel Issues

As of January 27, 2017, all US embassies and consular posts were ordered to immediately cease issuance of visas in almost all categories (temporary and permanent) to nationals and citizens of the listed countries. The exceptions, similar to the travel ban exceptions, are limited to: Diplomats (A), International Organizations (G), and NATO and UN and foreign government transit (C-2 and C-3) visa holders. This visa issuance ban remains effective.

The EO also allows the cancellation of existing visas issued to nationals and citizens of the listed countries. No details were provided as to visa cancellation procedures. Standard procedures for visa cancellations typically involve individual notification, usually by email. While this provision is largely meaningless while the ban is in effect, since the travel ban prevents use of the visa for travel to the U.S., it will become a concern once the ban ends.

The EO contains an allowance for exceptions to the travel and visa bans, on a case-by-case basis. However, no mechanism is specified for requesting exceptions. Moreover, individuals from the listed countries holding valid travel documents are being denied boarding on flights to the US. Airlines are required to conduct a limited document check before allowing passengers to board.

Recommendations: Nationals of Listed Countries

Individuals from the listed countries currently in the US in legal temporary non-immigrant status should not travel outside of the US. This warning also extends to US permanent residents, as explained above. In the initial days of the EO, LPRs have faced lengthy detention at the Ports of Entry (POE) upon return to the US.

While the administration has modified the policy to facilitate the return of LPRs, risks and uncertainties remain. Top-level policies are not always communicated and implemented uniformly in practice. In addition to challenges at the POE, LPRs from the designated countries may continue to face challenges when attempting to board return flights to the US. Thus, for the immediate future, all foreign nationals from the listed countries who reside legally in the US should avoid travel abroad.

Recommendations: All Foreign Nationals

The EO contains provisions for assessing the availability of adequate documentation for conducting immigration reviews on a country-by-country basis. Countries deemed unable or unwilling to provide such documents may be added to the “banned” list. Additionally, President Trump could issue new EOs without notice or warning. Thus, the possibility remains that further, unspecified restrictions could be enacted. Restrictions could expand to additional countries, particularly those which have actual or perceived links to ISIS and terrorism threats.

Also notable is language in the EO preamble which states,

We must ensure that those admitted to our country do not bear hostile attitudes toward our country and its founding principles. We cannot…admit…those who do not support the US Constitution…. In addition, the United States should not admit those who engage in acts of bigotry and hatred…or those who would oppress members of one race, one gender, or sexual orientation.

This, and general hard-line immigration policies, are reflected in the US Customs and Border Patrol (CBP) POE inspection processes for all foreign nationals. Travelers should expect more frequent and expanded POE searches of phones and other, mobile devices, laptops and social media during the admissions process. CBP officers have significant discretion in the admissions process; they are responsible for making a multitude of judgment-based decisions. The exercise of this discretion is impacted by current policies and attitudes. Thus, everyone planning travel needs to prepare for this aspect of the inspection process.

Suspension of Visa Interview Waiver Program: Expect Visa Application Delays

The Executive Order suspended the Visa Interview Waiver Program. This should not be confused with the Visa Waiver (ESTA) program which was not modified by the EO. The Visa Interview Waiver Program allowed designated non-immigrant visa applications to be processed at US consulates and embassies without an in-person interview. This was intended to enable a more efficient use of resources.

The suspension of this program is likely to result in greater wait times for visa interviews at many US consulates and, potentially, delays in visa processing timelines. Foreign nationals and their employers will need to be mindful of these time lines and plan accordingly.

Other Concerns: US Citizens

The terms and conditions of travel by US citizens to other countries are generally based upon reciprocal treatment by the US. Thus, the EO’s ban of Iranian nationals has resulted in Iran banning travel by US citizens. Additional changes are possible as the policies of the current administration unfold. This, in turn, will require US citizens to adapt their travel to any new policies.

Corporate Impact and Best Practices

Corporations with foreign nationals within their workforce need to prepare for limitations on business travel, delays, and interruptions in employee availability. Employers should review their existing practices and policies to adjust for the new developments and support foreign nationals who need to travel. Corporations should consider the following measures as part of best practices:

  • Availability of a company and legal contact during travel;
  • Enhanced supporting documents from the company to document eligibility for immigration benefits, including admission to the US;
  • Recalling employees currently traveling or working outside the US;
  • Self-auditing to verify employment and immigration compliance records in preparation for intensified enforcement visits from Immigration and Customs agencies; and
  • Creating or tightening of company policies to safeguard sensitive company data within mobile devices and laptops during employee travel.

Conclusion

Given the position of the new administration, it is reasonable to expect that the immigration legal and practical landscape will continue to change. The consequences may leave individuals and companies caught off-guard and unprepared. Investing time to monitor new developments and review existing documentation, procedures, and guidance related to immigration is vital to reducing exposure and disruption to both the individual and the workplace.