On Friday, February 3, the Federal District Court in Seattle issued a temporary restraining order suspending enforcement of President Trump's January 27 Executive Order. In light of this court order, the Department of Homeland Security confirmed over the weekend that it has paused enforcement of the travel restrictions. Litigation continues across the United States, and the Department of Justice is appealing the Seattle decision in the San Francisco-based Ninth Circuit Court of Appeals. We anticipate further court action soon.
New developments continue to unfold in the enforcement of President Trump's 27 January 2017 Executive Order 13769, "Protecting the Nation from Foreign Terrorist Entry into the United States." Please see our initial alert for comprehensive coverage of the Order's reach.
Dual National May Be Admitted with Travel Documents from an Unrestricted Country
U.S. Customs and Border Protection (CBP), which is a part of the U.S. Department of Homeland Security (DHS), has indicated that dual nationals of the seven restricted countries will be eligible for admission to the United States if they present a passport from a country not covered by the ban (e.g., a French/Libyan citizen traveling with a valid French passport). Initially, the Trump Administration indicated that such dual nationals would not be admitted.
-- The Order restricts entry into the United States for nationals of seven specified countries: Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen.
-- As we noted in our initial alert, the text of the order is broad enough to bar entry for dual citizens of one of the seven countries and a third, non-covered country. The order refers to "nationals" of, and "aliens from" the seven countries. The term "national" is defined under U.S. immigration laws to mean "a person owing permanent allegiance to a state." As such, even if a French-Libyan dual citizen travels under a French passport, that person is still a "national" of Iran.
-- However, new CBP guidance indicates that immigration agents will process nationals of the seven countries for entry if they are travelling with a passport from an unrestricted country.
-- This CBP guidance notes that the Executive Order does apply to such dual nationals, but CBP is only focusing on travel documents presented in its enforcement of the ban. The agency explains,
"[T]ravelers are being treated according to the travel document they present. For example, if they present a Canadian passport, that is how they are processed for entry."
-- This policy aligns with language we noted from a DHS fact sheet which explained the ban applied to individuals "traveling on passports from [these seven countries]," which is narrower than saying that it applies to all nationals. (CBP is an enforcement agency within DHS.)
-- On 27 January 2017, the State Department issued a notice of provisional revocation of visas issued to nationals of those seven countries (with the exception of visa categories exempt from the new Order, such as A, G, and NATO visas).
-- The State Department issued a new alert confirming that dual nationals from any country with a valid visa issued in a passport of an unrestricted country will be able to present such visa/passport to seek admission to the United States (as such, the provisional revocation of visas noted above appears to apply only to visas issued in passports of one of those seven restricted countries). The State Department also indicated that U.S. Embassies will process new visa applications of such dual nationals if they apply with a passport from an unrestricted country.
-- As the ban still does technically apply to dual nationals, we continue to note that travelers in this group may be subject to additional scrutiny and delays upon entry.
About Face on Green Card Holders
On 1 February 2017, Counsel to the President issued a memorandum providing legal guidance that Sections 3(c) and 3(e) of the Order do not apply to U.S. lawful permanent residents ("green card" holders). This guidance regarding the scope of the Order obviates the need for a "national interest" waiver that the DHS Secretary issued on 29 January 2017 to allow for admission of green card holders. Essentially, this memorandum issued by the White House means that such waiver was not required in the first place.
That said, DHS and CBP guidance has not yet been updated (as of 2 February) to reflect this legal memorandum from the Counsel to the President; DHS and CBP guidance continue to reflect that green card holders will be admitted pursuant to the waiver "absent significant derogatory information indicating a serious threat to public safety and welfare." In practice, green card holders can expect to be subject to questioning during re-entry until and unless DHS and CBP update their guidance for field officers based on the White House legal memorandum.
The New Order's Impact on the Visa Waiver Program
-- The Visa Waiver Program (VWP) allows citizens or nationals of certain countries to enter the United States as tourists or business visitors for up to 90-days without first obtaining a visa. These VWPeligible countries include but are not limited to France, Spain, the United Kingdom, Japan, and Germany.
-- As we noted in a January 2016 alert, legislation passed in 2015 made dual nationals of VWP countries who also held citizenship in Iran, Iraq, Sudan, or Syria ineligible for the VWP (and CBP Electronic System for Travel Authorization (ESTA) registration).
-- As such, dual nationals of Iran, Iraq, Sudan, and Syria have been unable to use the VWP for over a year. CBP guidance firms this point.
-- The new Order imposing a temporary travel ban reaches beyond these four countries, however, and includes Somalia, Yemen, and Libya as well.
-- Existing travel-related restrictions already denied VWP eligibility to individuals who had traveled to Somalia, Yemen, or Libya (as well as Iran, Iraq, Sudan, or Syria) since March 2011.
-- Consequently, the only possible impact of the new Order is on the following subset of people who were planning on using VWP: dual nationals of Somalia, Yemen, or Libya who are nationals of a VWP country and have not traveled to Iran, Iraq, Libya, Somalia, Sudan, Syria, or Yemen since March 2011.
-- This group would not have been caught by the statute's restriction of VWP eligibility, but is likely covered by the new Order.
-- The CBP guidance noted above does not specifically address dual nationals of VWP countries and Somalia, Yemen or Libya so there is no clear indication that such holders of passports from VWP countries will be processed for entry irrespective of the temporary ban. However, if they present a valid passport from an unrestricted country, have a valid ESTA registration, and have not traveled to any of the seven countries March 2011, the CBP guidance would appear to indicate that they should be processed for entry under VWP based on the passport from a VWP country.
Issued Raised for Future Consideration
-- A leaked draft of Executive Order "Protecting American Jobs and Workers by Strengthening the Integrity of Foreign Worker Visa Programs" appears to indicate the Trump Administration's intention to turn next to certain work visas, such as H-1Bs, L-1, E-2s, and even F-1 students with Optional Practical Training, for review and possible action. Although that draft does not reflect provisions that would immediately impact persons in those visa categories, it calls for issuance of proposed rules that may impact these visa holders and employment-based immigration programs in the future. As a result, employers who currently have employees in these visa categories should consider pursuing extension filings as soon as possible (in most cases, extension petitions can be filed within six-months of the petition expiration date), and should consider pursuing employment-based immigrant visa processing for those in the first preference category (e.g., multinational executives/managers, aliens of extraordinary ability, outstanding professors or researchers) before any such new rules are proposed that could adversely impact contemplated processing.
-- Last week, there were rumors of an expanded list in circulation of restricted countries, including Egypt, Lebanon, Afghanistan, Pakistan, Colombia, and Venezuela. We note that all of these countries appear on the State Department's Country Report on Terrorism describing Terrorist Safe Havens, which predates the issuance of Executive Order 13769. However, the American Immigration Lawyers Association (AILA) reported on 2 February that it had received word from Department of State (DOS) that these rumors of an expanded list were false. On 3 February, DHS also denied reports of an expanded list, saying, "[t]hese seven countries are the only countries to which the pause on entry applies. No other countries face such treatment. Nor have any other countries been identified as warranting future inclusion at this time, contrary to false reports."