On Friday, February 3, 2017, a Federal District Court judge issued a nationwide suspension of President Trump’s Executive Order, “Protecting the Nation from Foreign Terrorist Entry into the United States.” For more information on that Executive Order, please see our February 1 Alert. On Saturday, February 4, 2017, the Trump Administration asked the Court of Appeals for the Ninth Circuit to overrule the judge, but it refused on February 5. Thus, the U.S. is currently admitting approved refugees, as well as travelers with valid U.S. visas from the seven impacted nations, Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen.
Note, however, the appeals court continues to consider the Trump Administration’s request for an emergency stay that, if granted, would allow the ban to be enforced while the Administration continues to appeal the lower court’s decision to block the ban. The court process appears to be moving quickly as the Court of Appeals requested briefs to be filed today, Monday, February 6. If the Administration’s request for a stay is granted, the ban could be reinstated immediately. Thus, even though the ban is currently suspended, any international travel continues to be risky for nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen who are not U.S. lawful permanent residents or are not dual citizens holding a passport from a non-banned country containing a valid U.S. visa. Prior to the suspension of the ban, the Administration clarified a few aspects about the scope of the ban:
- The ban does not apply to U.S. citizens regardless of national origin/citizenship.
- The ban does not apply to any U.S. lawful permanent residents regardless of national origin/citizenship.
- The ban should not apply to dual nationals holding passports from a banned country and a non-banned country, provided that the individual presents a valid U.S. visa in the passport from the non-banned country.
Employer's Bottom Line
Because the ban could resume with little notice, it is impossible to know whether the ban will be in place or not when a traveler attempts to board a plane, change flights, or seek admission at the U.S. port of entry. Therefore, people carrying passports from any of the banned countries and all refugees should carefully consider any plans to depart the U.S. if presently here. If they are outside the U.S., there may be a very small window for them to return, but that could change at any time. The Department of Homeland Security is currently following standard policies and procedures as they existed prior to the ban, but there are reports of confusion at foreign airports regarding who may or may not board flights to the U.S. Additionally, individuals whose visas were cancelled or revoked while the ban was in effect may be required to apply for new or provisional visas.