Federal agency updates
On February 4, 2017, the United States Department of Homeland Security (DHS) announced that the agency has suspended implementing certain sections of the January 27, 2017 Executive Order (EO) titled “Protecting the Nation From Foreign Terrorist Entry Into the United States.”
Also on February 4, 2017, the U.S. Department of State (DOS) made a similar announcement, confirming that the provisional revocation of valid visas under the Executive Order was being lifted, and that foreign nationals with provisionally revoked visas do not have to apply for new visas.
These announcements put on hold the following changes originally instituted by the Executive Order:
- Barring the entry of valid nonimmigrant or immigrant visa holders from Syria, Iraq, Iran, Libya, Somalia, Sudan, and Yemen for 90 days (the “provisional visa revocation”).
- Suspending the U.S. Refugee Admissions Program (USRAP) for 120 days.
- Suspending the admission of refugees from Syria for an indefinite period.
Valid nonimmigrant or immigrant visas of affected foreign nationals that were provisionally revoked under the Executive Order are valid once again for travel to the United States. Foreign nationals with valid visas affected by the Executive Order should now be permitted to seek entry to the U.S. unless found inadmissible for other lawful reasons. However, if a visa was physically cancelled by a Customs & Border Protection (CBP) officer or has expired, the foreign national would have to either apply for a new visa, or would have to apply for a waiver of the valid visa requirement. Alternately, CBP officers may grant “parole” entry based on humanitarian need or benefit to the U.S. public.
CBP has advised the American Immigration Lawyers Association that foreign nationals with physically cancelled visas should ask their common carrier (airline, train, bus, passenger ship, etc.) to contact CBP on a case-by-case basis to initiate the waiver application process.
In addition, DOS has confirmed that U.S. consular posts have resumed processing visa applications of foreign nationals from the seven countries targeted by the Executive Order. U.S. embassies and consulates will resume scheduling visa appointments for these individuals.
Foreign nationals traveling to the U.S. by common carrier should confirm their visa documentation with the carrier, as some carriers require separate confirmation of a valid U.S. visa or travel documents.
Litigation update
The suspension of these parts of the Executive Order follows lawsuits filed by the States of Washington, Minnesota, and Massachusetts, and the Temporary Restraining Order issued on February 3, 2017 by the U.S. Federal District Court for the Western District of Washington. The Trump Administration is seeking to reverse the Temporary Restraining Order (TRO) and has tasked the U.S. Department of Justice (DOJ) to challenge the hold. On February 4, 2017, the Ninth Circuit Court of Appeals declined to reverse the District Court’s order. Today, February 6, 2017, the States and DOJ submitted briefs, and the Ninth Circuit has ordered oral argument for tomorrow, February 7, 2017.
Given the high degree of instability in government policy on “entry” of Syria, Iraq, Iran, Libya, Somalia, Sudan, and Yemen, foreign nationals in the U.S. holding sole nationality in these countries should not travel internationally without having consulted with an immigration attorney about the potential consequences of such travel.
Reportedly, both foreign nationals and U.S. citizens who have visited these countries can also expect additional questioning at U.S. ports of entry.
Please do not hesitate to contact your Jackson & Hertogs team should you have questions on these rapidly changing developments.
