The heavily anticipated new Executive Order (EO), “Protecting the Nation from Foreign Terrorist Entry into the United States,” banning nationals from six countries from entering the United States, was signed by President Donald Trump on March 6, 2017 with an effective date 10 days following on March 16, 2017. This new EO revokes and replaces the previous EO 13769 signed on Jan. 27, 2017. The replacement EO provides additional clarification that stemmed from judicial review. For a summary of EO 13769, and a history of events that transpired, please visit.
Highlights of changes in the new EO include:
- The six countries under the travel ban are Iran, Libya, Somalia, Sudan, Syria, and Yemen. Iraq has been lifted from the travel ban.
- Clarification has been given that lawful permanent residents are not subject to the travel ban, and dual nationals may use another passport (that is not from one of the six countries) to enter the United States.
- Waivers may be granted to individuals applying for a visa who are subject to the travel ban if: 1) denying entry during this period would cause undue hardship, 2) the entry would not pose a threat to national security, and 3) it would be in the national interest of the United States. Examples were provided of situations where a waiver would be appropriate.
- Entry under the U.S. Refugee Admission Program will be halted for 120 days from March 16, 2017. Notably, the blanket halt on Syrian refugees has been removed.
- The Visa Interview Waiver Program is suspended until further guidance from the Department of State.
- Those who are in the United States will not have their visas revoked.
The new EO provides an explanation for some components of EO 13769 that are now rescinded, amended, or clarified in this Order. A section-by-section analysis is below:
Section 2: Suspension of Visa Issuance- Iraq Removed
The text of this EO calls for the suspension of issuance of visas to nationals of Iran, Libya, Somalia, Sudan, Syria, or Yemen, except in case-by-case waivers, for 90 days from the effective date of the EO (March 16, 2017), while an ongoing assessment of the countries for terrorist threats is conducted. Notably, Iraq has been removed as one of the original countries subject to the travel ban. The reason cited is that the United States has been closely working with the Iraqi government and because of the military presence in Iraq, and Iraq’s commitment to fight ISIS, removing this country from the travel ban is justified.
In addition, the Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, will conduct a worldwide review to identify additional information, if necessary, from any country to ensure that the individual applying for a visa benefit is not a security threat. Within 20 days of March 16, 2017, a required report will be submitted to the President on the results of the worldwide review. Copies of this report will also be given to the Secretary of State, the Attorney General, and the Director of National Intelligence.
Once the report has been submitted to all parties, the Secretary of State shall request the foreign governments to provide the information needed within 50 days of notification. After the 50 day period has expired, the Secretary of Homeland Security, with the Secretary of State and the Attorney General, will submit to the President a list of countries where certain categories of foreign nationals should be prohibited from visa issuance because they have not provided the information. Additional countries may also be submitted for consideration to be added to the list of countries where restrictions or limitations are deemed necessary to protect the United States. In the same way, countries may be recommended for removal from the list as well.
Four reports, each submitted within 30 days of the effective date of the Order (March 16, 2017) to President Trump, are required to document the progress.
Section 3: Scope and Implementation of Suspension
Application: The suspension of entry into the United States will only apply to foreign nationals from Iran, Libya, Somalia, Sudan, Syria, or Yemen who are outside of the United States as of March 16, 2017; did not have a valid visa as of 5 p.m. EST on Jan. 27, 2017; and do not have a valid visa on March 16, 2017.
Exceptions: The suspension of entry will not apply to the following individuals even if the person is a national of Iran, Libya, Somalia, Sudan, Syria, or Yemen:
- A lawful permanent resident of the United States;
- A foreign national who is admitted to or paroled into the United States on or after March 16, 2017;
- Any foreign national who has a travel document other than a visa stamp that is valid on March 16, 2017, or any date afterwards that would permit travel into the United States;
- A dual national of one of the six countries (Iran, Libya, Somalia, Sudan, Syria, or Yemen) but traveling on a passport not from one of the six countries;
- Any foreign national traveling on a diplomatic or diplomatic-type visa, NATO visa, C-2 visa, or G-1, G-2, G-3, or G-4 visa;
- Any foreign national who has been granted asylum; a refugee who has been admitted to the United States; or any person who has been granted withholding of removal, advance parole, or protection under CAT (Convention Against Torture).
Waivers: A consular officer or a Customs and Border Protection (CBP) officer may, in their discretion, decide on a case-by-case basis, if the person has demonstrated that:
1) denying entry during this period would cause undue hardship;
2) denying entry during this period would not pose a threat to national security; and
3) it would be in the national interest to issue a visa to, or grant entry to, one whose entry would otherwise be suspended.
If a consular officer issues a waiver to grant a visa, then that waiver will apply to the entry on the visa as well. Individuals in the following situations may qualify for a waiver:
- The foreign national was previously admitted to the United States for a continuous period of work, study, or other long-term activity, and who was outside the United States on March 16, 2017, and is now seeking reentry to the United States to resume that activity. The foreign national will also need to show that denial of entry during the suspension period will hinder the activity.
- The foreign national has significant contacts in the United States, but was outside the United States on March 16, 2017, for employment, studies, or other lawful activity.
- The foreign national wishes to enter the United States for significant business or professional obligations, and denying the entry would hinder the obligations.
- The foreign national is seeking to enter the United States to visit or live with a close U.S. citizen family member, LPR, or individual who was admitted in non-immigrant status, and the denial of such entry would cause undue hardship.
- The foreign national is a young child or adoptee, a person needing urgent medical care, or whose entry is otherwise justified by the special circumstances.
- The foreign national has been employed by the U.S. government (or is a dependent of such employee) and has provided valuable and faithful service at the time to the U.S. government.
- The foreign national is traveling for meetings or business with the U.S. government representing an international organization designated under the International Organizations Immunities Act.
- The foreign national is a Canadian immigrant and who is applying for a visa within Canada.
- The foreign national is traveling in the capacity of a U.S. government-sponsored exchange visitor.
Section 4: Additional Inquiries Regarding Iraqi Nationals
A thorough review and, if necessary, consultation with a designee of the Secretary of Defense will be required for applications by any Iraqi national for a visa, admission, or other immigration benefit. The thorough review will include consideration of whether there are ties to ISIS, or any other terrorist organization, and whether the individual will pose as a threat to U.S. national security.
Section 5: Uniform Screening and Vetting Standards for All Immigration Programs
The text of the EO proposes to implement the following to better identify those who seek to enter the United States to harm the country:
- Develop a uniform baseline for screening procedures, including in-person interviews;
- Establish a database for identity documents to ensure duplicates are not used by different applicants;
- Utilize application forms with amended questions aimed at identifying fraudulent answers and malicious intent; and
- Identify questions to evaluate whether the applicant has the intent to commit criminal or terrorist acts in the United States.
The Secretary of Homeland Security will be required to submit a report to the President 60 days from March 16, 2017, on the progress of these initiatives for a new screening and vetting program. A second report will be due 100 days from March 16, 2017; and a third report 200 days from March 16, 2017.
Section 6: U.S. Refugee Admission Program Suspension for the Fiscal Year 2017
President Trump, through this EO, is temporarily suspending USRAP, effective March 16, 2017, for 120 days. Syrians are included in this temporary suspension and not signaled out for indefinite suspension during this 120 day period. A review will be conducted to determine and change the adjudications procedure. This will not apply to refugees who have been formally scheduled for transit by the Department of State prior to March 16, 2017. U.S. refugee admission will resume under the USRAP 120 days after March 16, 2017.
In addition, the text of the EO limits the number of refugees per fiscal year to 50,000, until the President determines that additional entries would serve the national interest.
The EO includes a provision that would allow the admission of refugees on a case-by-case basis, if it is in the national interest. The Order also includes a provision to assist state and local jurisdictions with their involvement in the resettlement process.
The EO includes other provisions related to the entry of foreign nationals into the United States. These include the following:
- Section 8: Expedited completion of the biometric entry-exit tracking system. Three reports shall be submitted within 100 days; 200 days; and 365 days of March 16, 2017, respectively, and a report shall be submitted every 180 days until the system is completed and operational.
- Section 9: Visa Interview Security. The visa interview waiver program will be suspended until further notice or guidance from the Department of State. This would require individuals who would otherwise be qualified for a visa interview waiver to appear at the U.S. consulate or embassy in person for an interview. The visa interview program suspension will not be applicable for those applying for a diplomatic or diplomatic-type of visa (NATO, C-2, G-1, G-2, G03, or G-4; or traveling under the IOIA for business purposes). In addition, the Secretary of State is instructed to expand the Consular Fellows Program where allowable to alleviate consulates and embassies abroad of workload.
- Section 10: Review and Change of Visa Validity Reciprocity. The Secretary of State is required to review all nonimmigrant visa reciprocity agreements, including all categories, duration of time, and fees. If the foreign country does not treat the U.S. national in a reciprocal manner, the Secretary of State will adjust the conditions to match.
- Section 11: Reports for Transparency and Data Collection. The Secretary of Homeland Security will publish a report for public viewing, every 180 days from March 16, 2017, a list of foreign nationals who have been charged, convicted, or removed from the United States based on terrorism-related activity; the number of foreign nationals radicalized after entry into the United States; information regarding the number and types of acts of gender-based violence against women; and any other relevant information. The first report will cover the time period from Sept. 11, 2001, to the report’s due date.
- Section 12: Enforcement. This section provides text for the following:
- The Secretary of State and the Secretary of Homeland Security are instructed to work with the appropriate domestic and international partners to ensure compliance and implementation of the contents of this EO.
- Opportunities will still be given to those individuals to claim a fear of persecution or torture to make their applications for asylum.
- There will be no revocation of an immigrant or nonimmigrant visa that was issued prior to March 16, 2017.
- Those whose immigrant or nonimmigrant visas had been revoked due to EO 13769 will be able to apply for a new travel document and seek entry.
- The EO will not apply to any person who was granted asylum, who is a refugee admitted to the United States, or to a person granted withholding of removal or protection under CAT. A person will still be able to seek asylum, withholding of removal, or protection under CAT.
As this Order is expansive, Greenberg Traurig will continue to monitor the conditions and changes. In addition, we expect additional EOs related to immigration in the coming days and weeks.