10 Things to Know About President Trump’s New Travel Ban

By:  Bernard Wolfsdorf, Esq. and Joseph Barnett, Esq.

Today President Donald Trump released a new Executive Order on immigration called “Protecting the National from Foreign Terrorist Entry into the United States,” which replaces his earlier Executive Order dated January 27, 2017 (now revoked) that has been blocked by various U.S. federal courts.

The new travel ban will not take effect until 12:01am EST on Thursday, March 16, 2017.

Implementing memorandum from the White House can be viewed here and here.  You may read more information and a Q&A on the new executive order from the U.S. Department of Homeland Security.

Here are 10 things to know about the new executive order:

  1. Suspends the entry of immigrants and nonimmigrants from Syria, Iran, Libya, Somalia, Sudan and Yemen into the United States for 90 days pursuant to authority granted to the president in 8 U.S.C. § 1182. Unlike the prior version, the executive order provides a far more national security basis for the inclusion of these countries.  It also indicates that the travel ban will only apply to foreign nationals of the designated countries who are:
  • Outside of United States on March 16, 2017;
  • Do not have a valid visa at 5:00p EST on January 27, 2017; and
  • Do not have a valid visa on March 16, 2017.
  1. Notably, Iraq has been removed from this list of designated countries, though the executive order requires that an application by any Iraqi national for a visa, admission, or other immigration benefit should be subjected to thorough review, including, consideration of whether the applicant has “connections with ISIS or other terrorist organizations, or otherwise pose a risk to either national security or public safety.”
  1. Exceptions to the suspension of entry to foreign nationals of the designated countries include:
  • Any lawful permanent resident of the United States
  • Any foreign national who is admitted to or paroled into the United States on or after March 16, 2017;
  • Any foreign national who has a document other than a visa valid on March 16, 2017 (such as an advance parole document) that permits him/her to travel to the United States and seek entry or admission;
  • Any dual national of a designated country, when that individual is traveling on a passport issued by a non-designated country;
  • Any foreign national traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas;
  • Any foreign national who has been granted asylum
  • Any refugee who has already been admitted to the United States
  • Any individual who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture

Most of this language was absent from the earlier executive order.

  1. Waivers to the suspension of entry to foreign nationals of the designated countries are allowed by the U.S. Customs and Border Protection (“CBP”) or a consular officer on a case-by-case basis if the foreign national has demonstrated to the officer’s satisfaction that denying entry during the suspension period would cause undue hardship, and that his or her entry would not pose a threat to national security and would be in the national interest, which includes:
  • The foreign national has previously been admitted to the United States for a continuous period of work, study, or other long-term activity, is outside the United States on the effective date of this order, seeks to reenter the United States to resume that activity, and the denial of reentry during the suspension period would impair that activity;
  • The foreign national has previously established significant contacts with the United States but is outside the United States on the effective date of this order for work, study, or other lawful activity;
  • The foreign national seeks to enter the United States for significant business or professional obligations and the denial of entry during the suspension period would impair those obligations;
  • The foreign national seeks to enter the United States to visit or reside with a close family member (e.g., a spouse, child, or parent) who is a United States citizen, lawful permanent resident, or alien lawfully admitted on a valid nonimmigrant visa, and the denial of entry during the suspension period would cause undue hardship;
  • The foreign national is an infant, a young child or adoptee, an individual needing urgent medical care, or someone whose entry is otherwise justified by the special circumstances of the case;
  • The foreign national has been employed by, or on behalf of, the United States Government (or is an eligible dependent of such an employee) and the employee can document that he or she has provided faithful and valuable service to the United States Government;
  • The foreign national is a landed Canadian immigrant who applies for a visa at a location within Canada; or
  • The foreign national is traveling as a United States Government-sponsored exchange visitor.

This language was absent from the earlier executive order.

  1. Requires DHS and DOS to comply with all applicable laws and regulations, including, as appropriate, those providing an opportunity for individuals to claim a fear of persecution or torture, such as the credible fear determination. This language was also absent from the earlier executive order.
  1. Requires DHS, in consultation with DOS and the Office of the Director of National Intelligence (“DNI”), to conduct a worldwide review to determine the information needed from any country to adjudicate any visa, admission, or other benefit under the U.S. immigration law in order to determine that “the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat.” Countries that do not provide the information requested by DOS may be added to the travel ban, as may other countries is “deemed necessary for the security or welfare of the United States.”
  1. Requires DOS, DHS, DNI, and the FBI to develop a uniform screening standard and procedure to identify “individuals seeking to enter the United States on a fraudulent basis with the intent to cause harm, or who are at risk of causing harm subsequent to their admission.” This may include the following processes:
  • In-person interviews;
  • A database of identity documents proffered by applicants to ensure that duplicate documents are not used by multiple applicants;
  • Amended application forms that include questions aimed at identifying fraudulent answers and malicious intent;
  • A mechanism to ensure that the applicant is who the applicant claims to be; and
  • A mechanism to ensure that applicants are who they claim to be; a mechanism to assess whether applicants may commit, aid, or support any kind of violent, criminal, or terrorist acts after entering the United States.
  1. Suspends the U.S. Refugee Admissions Program (“USRAP”) for 120 days for DHS to “determine what additional procedures should be taken to ensure that those approved for refugee admission do not pose a threat to the security and welfare of the United States.” Refugee applicants who are already in the USRAP process may be admitted upon the initiation and completion of these revised procedures.  During this time, however, DOS and DHS may admit individuals as refugees on a case-by-case basis as long as entry is in national interest and does not pose threat to security or welfare of U.S., including when the individual’s entry would enable the United States to conform its conduct to a preexisting international agreement or arrangement, or the denial of entry would cause undue hardship.  No more than 50,000 refugees will be admitted in fiscal year 2017 until President Trump determines “that additional admissions would be in the national interest.”
  1. Require that all individuals seeking a nonimmigrant visa undergo an in-person interview, subject to specific statutory exceptions.
  1. Requires DHS and DOS to “consider rescinding the exercises of authority in section 212 of the INA, 8 U.S.C. 1182, relating to the terrorism grounds of inadmissibility, as well as any related implementing memoranda.”

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This blog was posted in: Alerts, Immigration, Travel
This blog was tagged: Executive Order, President Trump
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