Trump Travel Ban In Effect, Sowing Confusion Over Implementation and Prompting Legal Challenges Nationwide

In a major shift to U.S. visa policy, President Trump signed an Executive Order titled “Protecting the Nation from Terrorist Entry into the United States by Foreign Nationals” on January 27, 2017.  The order temporarily suspends visa issuance and entry into the United States of foreign nationals traveling on passports from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen.  It will likely also create an immediate and substantial increase in wait times for non-immigrant visa appointments worldwide due to the suspension of the Visa Interview Waiver Program.  The order went into effect immediately, though implementation has been inconsistent as the administration continues to develop guidance regarding which individuals are affected.  Multiple lawsuits throughout the country have been filed challenging the legality of the executive order.  The situation remains fluid.

Key elements of the Executive Order include:

• Ban on Entry to the United States for Individuals from Countries of Concern: Temporary suspension of non-immigrant and immigrant visa issuance and entry into the United States for 90 days for all foreign nationals traveling on passports from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen.  More countries could be added to this list in the future.  The Department of Homeland Security (DHS) announced on January 29 that while U.S. Lawful Permanent Residents (LPR) are subject to the travel ban, they will be permitted to enter the country absent significant evidence that they are a threat to public safety and welfare.  [Note: Although this is the current administration policy with regard to LPRs, there have been multiple reports that DHS is not uniformly complying with this directive.  If you are an LPR either in the United States planning on traveling abroad or outside of the country attempting to enter, we encourage you to contact SGG for a consultation prior to traveling.  The administration’s policy relating to LPRs is subject to change at any time.]  
• All travelers, including U.S. citizens and LPRs, may experience increased scrutiny when seeking to enter the United States if they are dual nationals of or have recently traveled to one of the impacted countries.  DHS has instructed airlines to deny boarding to individuals subject to the travel ban, with the exception of LPRs. 
• During the temporary suspension, U.S. national security agencies are tasked with developing enhanced vetting procedures for issuance of visas and admissions to the United States, as well as the adjudication of any other immigration benefit, which will require compliance from all foreign governments within 60 days of notification.  Foreign nationals of countries that do not comply would be prohibited from entry into the United States indefinitely.  Notwithstanding these restrictions, visas and other immigration benefits may be issued to individuals on a case-by-case basis when in the national interest.   
• Suspension of Visa Interview Waiver Program: All individuals seeking a non-immigrant visa must now undergo an in-person interview, with the exception of certain exempted individuals.  The Visa Interview Waiver Program was previously used to waive the interview requirement for travelers who had already been vetted and determined to be a low security risk and who had a demonstrated track record of stable employment and stable travel.  This program contributed to decreased visa interview wait times worldwide while conserving limited consular resources. [Note: The Visa Interview Waiver Program is different from the “Visa Waiver Program” (“VWP”). The VWP facilitates travel without the requirement of a visa by nationals of certain countries.  The executive order has no effect on the VWP.]
• Uniform Immigration Benefits Screening:  Development of additional uniform screening standards and procedures for all immigration benefits designed to identify fraud and intent to cause harm.  This may include a process to evaluate an applicant’s “likelihood of becoming a positive contributing member of society” and their “ability to make contributions to the national interest.”
• Refugee Admissions: Suspension of the U.S. Refugee Admissions Program for 120 days, with resumption only for nationals of countries for whom it is determined that sufficient vetting is in place.  Refugee processing and admission for Syrian nationals is suspended indefinitely.  Priority given to refugees on the basis of religious-based persecution provided that they are a minority religion in their country of nationality.  Places limit of 50,000 refugee admissions for FY 2017.  Case-by-case exceptions to this policy are possible if in the national interest.
• Additional elements include: Expedited completion and implementation of the Biometric Entry-Exit system; Review of all visa reciprocity agreements, and regular publication of information relating to terrorism and gender-based violence involving foreign-born individuals in the United States. 

Analysis:

Although the travel ban is in effect, the situation remains fluid as the Trump administration continues to develop guidance regarding which individuals may be affected.  In response to multiple lawsuits filed by several civil rights organizations immediately following the signing of the executive order, federal courts throughout the country have issued limited stays of certain aspects of the executive order, although it is still unclear whether DHS is complying.  Implementation of the executive order by DHS has been inconsistent due to the high level of uncertainty regarding its applicability. Meanwhile, the Department of State (DOS) has cancelled interviews and halted issuance of all visas to individuals subject to the executive order. 

There have been numerous credible reports of Customs and Border Protection (CBP) officers pressuring returning LPRs to abandon their status at ports of entry throughout the country.  Subject to the advice of a qualified immigration attorney, LPRs should not abandon their status nor sign Form I-407 if asked to do so by a CBP officer.

The suspension of the Visa Interview Waiver Program will have a major effect on visa processing as overseas embassies and consulates adjust their staffing and workflows to the new reality. These adjustments will likely result in an immediate and substantial increase in wait times for visa appointments worldwide.  All SGG clients should plan accordingly.  

Such a wide-ranging policy shift introducing enhanced vetting procedures will present an immense challenge for implementing agencies such as the DOS, DHS, and the United States Citizenship and Immigration Services.  We have already observed and expect further increased delays, inconsistent decision-making, and adjudication errors as those agencies try to execute President Trump’s directive. 

In these uncertain times, we encourage you to contact SGG if you believe you may be adversely affected by these policy changes so that we can develop an effective strategy going forward.  SGG will continue to follow these developments and provide regular updates.

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