On January 27, 2017, the White House handed down an Executive Order suspending entry into the United States, as well as issuance of visas, for individuals “from countries of particular concern.” The Order also directs the implementation of additional screening mechanisms for all foreign national travelers to the United States. Colleges and universities that employ foreign national workers and enroll foreign students should be cognizant of the Order and its impact on the ability of their foreign national workers and students to obtain a visa and travel to the United States.

Uncertain Times for Foreign National Students and Employees

Though the Executive Order, titled “Protecting the Nation From Foreign Terrorist Entry Into the United States,” is wide-ranging, one of its most controversial parts is the 90-day suspension of the admission of and issuance of visas to foreign nationals “from countries of particular concern.” These countries currently include Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen, but the Order raises the possibility of adding others later.

The reach of this Executive Order is still unclear. Pending clarification, and with limited exceptions discussed below, U.S. visa holders who are current citizens of, hold a passport from, or were born in the designated countries should refrain from traveling to the United States, or from leaving the United States if they wish to maintain valid immigration status. The U.S. Department of State has clarified that it will issue visas to travelers from the affected countries if they also possess a passport from an unaffected country; and U.S. Customs and Border Protection has stated that dual nationals of the designated countries will be processed for entry based on the nationality of their proffered passport or travel document.

On January 29, 2017, Secretary of Homeland Security John Kelly issued a statement that the Executive Order applies to U.S. lawful permanent residents “from” the designated countries but that they may enter the United States on a case-by-case basis. On February 2, 2017, a District Court in Michigan permanently enjoined enforcement of these portions of the Executive Order against those who have been admitted as lawful permanent residents of the United States.

It is expected that inconsistent determinations may be made as to the ability of travelers to board U.S.-bound aircraft or to be admitted to the United States; enforcement of the Order has varied from place to place. Arriving individuals should expect additional screening at the airport.

Anticipate Processing and Travel Delays

The Visa Interview Waiver Program allows foreign nationals who meet eligibility requirements and who apply to renew a temporary visa to request a waiver of an in-person interview at a U.S. consulate or embassy. The program will effectively be suspended under this Order, slowing the consular processing times for U.S. visas for applicants from all countries. All foreign national students, faculty, and staff planning on traveling outside the United States who will apply for a U.S. visa at a consulate abroad should plan for additional travel time due to expected long consular delays. Additionally, institutions should plan for the continuation of business operations and consider how to address academic program interruptions in the event of lengthy absences of students or employers caused by the visa issuing process.

What This Means to You

The parameters of the Executive Order are as yet unclear, and its implementation has been marked by continuing confusion. While the Executive Order is currently being challenged in federal court, and several injunctions have been issued, the Executive Order is still in place and is being enforced to the extent possible. For this reason, institutions that admit international students and that sponsor faculty or staff for work authorization or permanent residence should be aware of the Executive Order’s known and potential ramifications for foreign national faculty, staff, and students.

For instance, foreign nationals from the designated countries who are currently outside of the United States may not be permitted to return. All foreign national employees and students who travel between the United States and a foreign country should be prepared for long delays and possible lengthy secondary detention at airports upon arrival in the United States.

As we await clarity on this sweeping new policy, many in the higher education community recommend that colleges and universities consider the following steps:

  • Conduct outreach to employees who may be affected by the Order
  • Consider offering informational and support sessions or gatherings
  • Provide a list of local resources that can help those impacted
  • Emphasize that enforcement of the Order is fluid and dynamic
  • Manage expectations about how long it may take to get answers to questions
  • Discourage discretionary travel amongst students and employees who may be impacted