Travel Advisory for Nationals of Certain Countries Pursuant to Executive Order 13769

February 18, 2017

 
Updates on Executive Order 13769 Section 3(c) 90-Day Entry Bar Litigation

On February 16, 2017, the government requested and was granted a stay of the en banc proceedings that the Ninth Circuit Court had begun. The stay of proceedings order explains that the government's request was based on its intention to issue a new Executive Order:

"The United States has represented to the Court that the President intends to issue a new Executive Order and has urged the Court to 'hold its consideration of the case until the President issues the new Order.' The United States has further represented that it will inform the Court of any new developments. En banc proceedings before this Court are stayed pending further Order of this Court."

The government's supplemental brief in support of its request for a stay of the en ban proceedings refers to a "new superseding Executive Order," which implies that the forthcoming Executive Order would replace the Executive Order 13769 Section 3(c) 90-Day entry bar with a new entry bar. See the quote below from the President's February 16, 2017 news conference, where he mentioned that a new Executive Order would be "done sometime next week, toward the beginning or middle at the latest part."

The New York Times provided a transcript of a Thursday, February 16, 2017 news conference, in which President Trump stated:

"I will not back down from defending our country. I got elected on defense of our country. I keep my campaign promises, and our citizens will be very happy when they see the result. They already are, I can tell you that. Extreme vetting will be put in place and it already is in place in many places.

In fact, we had to go quicker than we thought because of the bad decision we received from a circuit that has been overturned at a record number. I have heard 80 percent, I find that hard to believe, that is just a number I heard, that they are overturned 80 percent of the time. I think that circuit is - that circuit is in chaos and that circuit is frankly in turmoil. But we are appealing that, and we are going further.

We're issuing a new executive action next week that will comprehensively protect our country. So we'll be going along the one path and hopefully winning that, at the same time we will be issuing a new and very comprehensive order to protect our people. That will be done sometime next week, toward the beginning or middle at the latest part."

It is unclear what the "new executive action" would look like, or how it might differ from the Section 3(c) 90-day entry bar. It is possible that it might be patterned after the indefinite entry bar contemplated by Section 3(e) of Executive Order 13769, but guessing on the details of what might be planned for next week would be speculation at this point.

On Thursday evening February 9, 2017, a three-judge panel of the Ninth Circuit Court of Appeals denied the government's emergency motion for a stay on the District Court's temporary restraining order preventing the government from enforcing Executive Order 13769's 90-day entry bar.

Read the Ninth Circuit Court of Appeals Decision. The Court of Appeals panel states in its order,

"we hold that the Government has not shown a likelihood of success on the merits of its appeal, nor has it shown that failure to enter a stay would cause irreparable injury, and we therefore deny its emergency motion for a stay."

This leaves in place the District Court's temporary restraining order, which continues to prevent the government from enforcing Section 3(c) of Executive Order 13769, the provision that established the 90-day ban on entry of "immigrants and nonimmigrants" from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen, and Sections 5(a), 5(b), 5(c), and 5(e) of the Executive Order, which established a 120-day suspension of admission of refugees to the United States.

The Trump administration can consider several legal responses, including further litigation before the Ninth Circuit Court of Appeals, or appealing directly to the Supreme Court. In the meantime, the District Court proceedings in Seattle will also continue. Some news outlets like The Hill and Politico have also reported that the White House may be considering drafting a new executive order that would address some of the legal issues that have stalled Executive Order 13769.

On February 7, 2017, the Ninth Circuit Court of Appeals heard oral arguments on the government's request for an emergency stay of the District Court's temporary restraining order.

  • Listen to the audio recording of the February 7, 2017 oral arguments

The 3-judge panel recognized the public's interest and the urgency of the matter, and stated their intention to render the court's decision as soon as possible. The decision and other court documents will be made available on the Ninth Circuit Court of Appeals website.

On January 27, 2017, President Trump signed Executive Order 13769, entitled Protecting the Nation from Terrorist Entry into the United States by Foreign Nationals. Under Section 3(c) of that Executive Order, entry into the United States of most "immigrants and nonimmigrants" from Iran, Iraq, Libya, Somalia, Sudan, Syria, Yemen was suspended for 90 days from the date the Executive Order was signed. Implementation of the Section 3(c) "entry ban" has generated protest, interpretive questions, application issues, and litigation that have impacted implementation of the ban.

  • The first part of this NAFSA resource page provides updates on a February 3, 2017 temporary restraining order (TRO) that prevents the government from enforcing the Section 3(c) entry ban, and how the Departments of Homeland Security and State are complying with the TRO in terms of visa issuance and validity, and admission to the United States.
  • Consult the second part of this resource for background, and to understand the basis of Executive Order 13769's Section 3(c) 90-day entry ban, and how it operated before the February 3, 2017 TRO.

TRO Stops Enforcement of Section 3(c) 90-Day Entry Ban

District Court's Temporary Restraining Order

On February 3, 2017, the U.S. District Court for the Western District of Washington in Seattle granted a temporary restraining order (TRO) that temporarily prohibits the Federal government from enforcing Section 3(c) of Executive Order 13769, the provision that established the 90-day ban on entry of "immigrants and nonimmigrants" from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. The suit, filed by the State of Washington and later joined by the State of Minnesota, was argues that the ban violates the Equal Protection, Establishment, and Due Process clauses of the Constitution. The TRO "is granted on a nationwide basis," according to the order. The TRO also prohibits enforcement of Sections 5(a), 5(b), 5(c), and 5(e) of the Executive Order, which established the 120-day suspension of admission of refugees to the United States. The TRO does not cover any other section or paragraph of the Executive Order. For example, Section 8, which deals with the Visa Interview Waiver Program, is not covered by the TRO. Likewise, the TRO does not cover section 3(e) of the Executive Order, which establishes the basis for a future entry bar after the 90-day period, for citizens of countries that do not comply with information requests from DHS.

Documentation on the District Court case and the TRO

Government's appeal and requests for stay of the Temporary Restraining Order

On February 4, 2017, the Trump administration appealed the District Court's temporary restraining order (TRO) to the Ninth Circuit Court of Appeals, and asked the Court of Appeals for an emergency stay of the Circuit Court's TRO. The administration also asked the appeals court to grant an immediate administrative stay of the Circuit Court's TRO while the court considers the appeal and emergency stay petition. The Court of Appeals denied the administration's request for an immediate administrative stay of the TRO, and then on February 9, 2017, denied the government's emergency motion for a stay.

Read the Ninth Circuit Court of Appeals Decision. The Court of Appeals states in its February 9, 2017 order,

"we hold that the Government has not shown a likelihood of success on the merits of its appeal, nor has it shown that failure to enter a stay would cause irreparable injury, and we therefore deny its emergency motion for a stay."

This leaves in place the District Court's temporary restraining order, which continues to prevent the government from enforcing Section 3(c) of Executive Order 13769, the provision that established the 90-day ban on entry of "immigrants and nonimmigrants" from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen, and Sections 5(a), 5(b), 5(c), and 5(e) of the Executive Order, which established a 120-day suspension of admission of refugees to the United States. In the meantime, the District Court proceedings will continue.

but will proceed to consider its request for an emergency stay of the order.

Documentation and links on the government's appeal and requests for stay

Remember that a temporary restraining order is, as its name indicates, temporary. The situation remains very fluid. Travelers must remain aware that the situation could change rapidly, and consult legal counsel when needed.

Agency Implementation of the TRO

Agencies have begun implementing the TRO. The situation remains very fluid. Although an entry window remains open for now, travelers must remain aware that the situation could change rapidly.

CBP and entry to the United States

To comply with the TRO, U.S. Customs and Border Protection (CBP), which is in charge of inspections at U.S. ports of entry, has resumed inspection of travelers "in accordance with standard policy and procedure." CBP updated its Executive Order FAQs with the following statement:

"In accordance with the judge's ruling, DHS has suspended any and all actions implementing the affected sections of the Executive Order entitled, 'Protecting the Nation from Foreign Terrorist Entry into the United States.' This includes actions to suspend passenger system rules that flag travelers for operational action subject to the Executive Order. DHS personnel will resume inspection of travelers in accordance with standard policy and procedure. At the earliest possible time, the Department of Justice intends to file an emergency stay of this order and defend the President's Executive Order, which is lawful and appropriate. The Order is intended to protect the homeland and the American people, and the President has no higher duty and responsibility than to do so."

News services such as Reuters reported that CBP has contacted airlines to inform them that during the validity of the TRO, airlines can board individuals who would otherwise be subject to the Executive Order's Section 3(c) entry ban. Individual travelers should contact their airline directly to inquire about any adjustment to the airline's boarding policy as a result of the TRO.

DOS and visa issuance and revocation of visas

To comply with the TRO, the Department of State has temporarily lifted its suspension of visa processing, and reversed its directive that provisionally revoked the visas of individuals subject to the Section 3(c) entry ban. DOS posted the following two notices on the travel.state.gov website:

First DOS notice, on lifting of visa revocations

February 4, 2017

Urgent Notice

Per the Executive Order on Protecting the Nation from Terrorist Attacks by Foreign Nationals signed on January 27, 2017, visa issuance to nationals of the countries of Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen was suspended. An order issued by a U.S. District Court in Washington state on February 3, 2017 bars the U.S. government from enforcing certain provisions of Executive Order 13769, , 'Protecting the Nation from Terrorist Attacks by Foreign Nationals,' including those related to visas and travel for nationals of Syria, Iraq, Iran, Libya, Somalia, Sudan, and Yemen. Accordingly, U.S. embassies and consulates will resume scheduling visa appointments for these nationals.

The Department of State had also, under the Executive Order, provisionally revoked all valid visas of nationals of those seven countries. That provisional revocation is now lifted, and those visas are now valid for travel to the United States, if the holder is otherwise eligible. Individuals whose visas are expired, or were physically cancelled, must apply for a new visa at a U.S. embassy or consulate, absent a Customs and Border Patrol (CBP) decision to grant parole or waive the visa requirement at the port of entry. We are looking further into this issue and will revise this site with any updates.

We will announce any other changes affecting travelers to the United States as soon as that information is available.

Second DOS notice, on resumption of visa processing

February 4, 2017

Urgent Notice  

Per the Executive Order on Protecting the Nation from Foreign Terrorist Entry into the United States signed on January 27, 2017, visa issuance to nationals of the countries of Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen was suspended. An order issued by a U.S. District Court in Washington state on February 3, 2017 bars the U.S. government from enforcing certain provisions of Executive Order 13769, "Protecting the Nation from Foreign Terrorist Entry into the United States," including those related to visas and travel for nationals of Syria, Iraq, Iran, Libya, Somalia, Sudan, and Yemen. Accordingly, U.S. embassies and consulates will resume scheduling visa appointments for these nationals.

Background

Important Notice: The content that follows presents the status of Executive Order 13769's Section 3(c) 90-day entry ban before the February 3, 2017 Temporary Restraining Order (TRO) arising out of the Washington State v. Trump lawsuit, which is discussed above. Because a TRO is temporary by nature, and because the government continues to challenge the TRO on appeal, we are temporarily leaving this background information unchanged until the litigation is resolved. Consult this background information to understand the basis of the Section 3(c) 90-day entry ban, and consult the updates at the top of this page for how the current TRO and the litigation surrounding it impact the implementation of the 3(c) entry ban for now.


On January 27, 2017, President Trump signed Executive Order 13769, entitled Protecting the Nation from Terrorist Entry into the United States by Foreign Nationals. Under Section 3(c) of that Executive Order, entry into the United States of "immigrants and nonimmigrants" from at least 7 countries has been suspended for 90 days from the date the Executive Order was signed, "except for those 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." For now, these countries are:

  1. Iran
  2. Iraq
  3. Libya
  4. Somalia
  5. Sudan
  6. Syria
  7. Yemen

Section 3(c) of Executive Order 13769 reads:

"(c) To temporarily reduce investigative burdens on relevant agencies during the review period described in subsection (a) of this section, to ensure the proper review and maximum utilization of available resources for the screening of foreign nationals, and to ensure that adequate standards are established to prevent the terrorist or criminal infiltration of foreign nationals, pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order (excluding those foreign nationals 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)."

Because of an exception made for lawful permanent residents discussed below, Executive Order 13769 now affects nonimmigrants and immigrants differently. Affected individuals should consult an experienced immigration lawyer if they have questions or for legal advice.

Nonimmigrants under Executive Order 13769

If you have students or scholars who are nationals of one of the above countries and who are currently in the United States in nonimmigrant status (e.g., B, F, J, H, O, TN, etc.), they should not travel outside the United States (but remember, they must still comply with all the terms and conditions of their current nonimmigrant status). Prospective nonimmigrants, and nonimmigrants who were outside the United States on the date Executive Order 13769 was signed, will not be permitted to enter or reenter the United States, and will likely be told that they cannot board a flight to the United States. A DHS statement posted on January 29, 2017 states, "We are also working closely with airline partners to prevent travelers who would not be granted entry under the executive orders from boarding international flights to the U.S."

Also make sure to read CBP FAQs. U.S. Customs and Border Protection bureau (CBP) is charged with the front-line inspection and admission process at U.S. ports of entry (POEs). On January 31, 2017, CBP posted a statement and a set of Frequently Asked Questions (FAQs). Review those FAQs in detail. For example, examine this CBP FAQ (posted as of the date this Travel Advisory was last updated):

FAQ: How will the EO affect college students from the barred countries, such as F1/J1/M1 visa holders? Are they included in the ban? What kind of guidance is being given to foreign students from these countries legally in the US?

CBP Response to FAQ: F1/J1/M1 visas are currently temporarily suspended due to the executive order. Individuals who were in the U.S. at the time of the signing of the executive order are not affected by the order. However, individuals who were out of the country at the time of the signing, or who travel out of the country and attempt to return will not be allowed to return at this time. The Department is evaluating whether those who are precluded from returning as a result of the Executive Order will be considered to have maintained their status as F1 or M1 students.

Since the CBP FAQs may change over time as additional policy clarification is made, visit the FAQs frequently. Remember that these are just FAQs. Individuals with questions should discuss risks and strategies of their particular situation with an experience immigration lawyer.

Immigrants and lawful permanent residents under Executive Order 13769

An exception for lawful permanent residents

Although Sections 3(c) and 3(e) of the Executive Order cover both "immigrants and nonimmigrants," on January 29, 2017, after significant public protest and legal action by the American Civil Liberties Union (ACLU) and others, Department of Homeland Security (DHS) Secretary John Kelly determined that permitting the entry of lawful permanent residents is "in the national interest." By doing this Secretary Kelly invoked an exception to the entry ban found in Section 3(g) of the same Executive Order, which provides:

"(g) Notwithstanding a suspension pursuant to subsection (c) of this section or pursuant to a Presidential proclamation described in subsection (e) of this section, the Secretaries of State and Homeland Security may, on a case-by-case basis, and when in the national interest, issue visas or other immigration benefits to nationals of countries for which visas and benefits are otherwise blocked."

Secretary Kelly's January 29, 2017 statement reads:

"In applying the provisions of the president's executive order, I hereby deem the entry of lawful permanent residents to be in the national interest."

"Accordingly, absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status will be a dispositive factor in our case-by-case determinations."

A January 29, 2017 DHS Fact Sheet contains the following language describing Secretary Kelly's determination in further detail:

"Importantly, however, lawful permanent residents of the United States traveling on a valid I-551 will be allowed to board U.S. bound aircraft and will be assessed for exceptions at arrival ports of entry, as appropriate. The entry of these individuals, subject to national security checks, is in the national interest. Therefore, we expect swift entry for these individuals."

Finally, a February 1, 2017 memorandum from White House Counsel Donald McGann stated,

"I understand that there has been reasonable uncertainty about whether those provisions apply to lawful permanent residents of the United States. Accordingly, to remove any confusion, I now clarify that Sections 3(c) and 3(e) do not apply to such individuals. Please immediately convey this interpretive guidance to all individuals responsible for the administration and implementation of the Executive Order."

What is a valid I-551?

Secretary Kelly's January 29, 2017 determination, discussed above, refers only to "lawful permanent residents," otherwise known as green card holders. The January 29, 2017 DHS Fact Sheet refers to "lawful permanent residents traveling on a valid I-551." There are two kinds of I-551 that might be considered "valid":

  • Form I-551. Form I-551 is the official designation of a green card, which USCIS issues to evidence an individual's lawful permanent resident status. See the USCIS website for information on Form I-551.
  • Temporary I-551. A temporary I-551 consists of a stamp in a lawful permanent resident's passport, that serves as temporary proof of the individual's lawful permanent resident status while the actual Form I-551 green card is being processed. A temporary I-551 stamp might be given in the following circumstances:
    • By U.S. Customs and Border Protection (CBP), when an individual with a valid immigrant visa first enters the United States with the immigrant visa. The CBP entry stamp with the immigrant visa in the individual's passport comprises the temporary I-551 in this situation.
    • By U.S. Citizenship and Immigration Services (USCIS), upon request, after an application for adjustment of status to lawful permanent resident has been approved, when the new lawful permanent resident needs to travel before the Form I-551 green card is received.
    • By USCIS, upon request, when a lawful permanent resident has lost his or her Form I-551 green card and has applied for a replacement Form I-551, but needs to travel before the replacement Form I-551 is received.
     

Validity of immigrant visas not yet used to enter the United States

The language in Secretary Kelly's waiver determination and the White House Counsel memorandum reference only "lawful permanent residents." A "valid I-551," referenced in the DHS Fact Sheet, would be held only by lawful permanent residents who are returning to the United States after having already acquired lawful permanent residence before they departed the United States. This would clearly not include, for example, adjustment of status applicants who are traveling on an advance parole document or an H-1B visa.

But what about people who have an immigrant visa in their passport, but who had not entered the United States on that immigrant visa prior to the signing of the Executive Order? Such individuals become a lawful permanent resident only when they enter the United States on the immigrant visa, and neither the Kelly waiver determination, the DHS Fact Sheet, nor the White House Counsel memorandum specifically address this group of immigrant visa holders. Because of this, it is generally understood that holders of immigrant visas who are outside the United States and are from one of the 7 countries are not eligible to use those immigrant visas to enter the United States to finalize their path to lawful permanent residence. Several of the recent legal suits are resulting in temporary relief that certain plaintiffs and others might benefit from. See, for example, the Temporary Restraining Order issued on February 1, 2017 in a case filed in the U.S. District Court for the Central District of California (reported on the Los Angeles Times website). However, an individual with an immigrant visa who is currently outside the United States, who wants to assess whether current or future litigation might benefit them in their own specific case, should consult an experienced immigration lawyer for legal advice, before making plans to travel to the United States.

Duration of the entry ban

The final version of Executive Order 13769 sets the duration of the ban to 90 days. It was raised to 90 days from the 30 days that appeared in the draft version of the order that had circulated prior to January 27, 2017. Also note that after 90 days, the entry ban is not automatically lifted. Rather:

  • Executive Order 13769 also requires DHS to specify what kind of information it needs from any country (not just the 7 countries) regarding an applicant for an immigration benefit, "to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat," and to determine which countries do and do not provide such information.
  • Within 30 days of January 27, 2017, DHS (in consultation with DOS and the Director of National Intelligence) must submit to the President a report on the results of the review, including the Secretary of Homeland Security's determination of the information needed for adjudications and a list of countries that do not provide adequate information.
  • If DHS determines that a country does not provide such information, the country will be informed that it has 60 days to begin providing it.
  • If after the 60 days the country does not begin providing such information, under Section 3(e) of Executive Order 13769 the noncompliant country will be included in a future proclamation under INA 212(f) that would render nationals of that country ineligible for entry, until such time as the country begins providing the requested information. This process could expand the list beyond seven countries. By the same token, after the initial 90 days any country on the original list of seven could possibly be removed from the list if it begins providing the information requested by DHS.

The 90-day ban and visa issuance, visa revocation, and visa reinstatement

Visa issuance suspended

A Department of State newsroom release states the following regarding visa issuance and visa appointments:

"Urgent Notice. Per the Executive Order on Protecting the Nation from Terrorist Attacks by Foreign Nationals signed on January 27, 2017, visa issuance to nationals of the countries of Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen has been suspended effective immediately until further notification. If you are a citizen of one of these countries, please do not schedule a visa appointment or pay any visa fees at this time. If you already have an appointment scheduled, please DO NOT ATTEND. You will not be permitted entry to the Embassy/Consulate. We will announce any other changes affecting travelers to the United States as soon as that information is available."

Visa revocations

On January 27, 2017, the same day Executive Order 13769 was signed, the Deputy Assistant Secretary of State Edward Ramatowski purportedly signed a provisional revocation determination that revoked immigrant and nonimmigrant visas issued to nationals of the 7 countries identified through section 3(c) of Executive Order 13769. The Department of State has not released this memo to the public.

"Upon request of the U.S. Department of Homeland Security and pursuant to sections 212(f) and 221(i) of the Immigration and Nationality Act and 22 CFR 41.122 and 42.82, and in implementation of section 3(c) of the Executive Order on Protecting the Nation from Terrorist Attacks by Foreign Nationals, I hereby provisionally revoke all valid nonimmigrant and immigrant visas of nationals of Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen, subject to the exceptions discussed below."

"The revocation does not apply to visas in the following nonimmigrant classifications: A-1, A-2, G-1, G-2, G-3, G-4, NATO, C-2, or certain diplomatic visas."

"The revocation also does not apply to any visa exempted on the basis of a determination made by the Secretaries of State and Homeland Security pursuant to section 3(g) of the Executive Order on a case-by-case basis, and when in the national interest."

The circulating copy of the memo came to light in the course of one of the lawsuits filed against the Executive Order, Louhghalam v. Trump, case no. 1:17-cv-10154, filed in Massachusetts District Court. Footnote 12 of the plaintiff's February 1, 2017 amended complaint describes the origin of the memo, and the status of its verification:

"Immediately prior to the filing of this Amended Petition, defendants served on the plaintiff-petitioners a document purportedly issued by Edward J. Ramotowski, Deputy Assistant Secretary, Bureau of Consular Affairs, Department of State, dated January 27, 2017 stating "I hereby revoke all valid nonimmigrant and immigrant visas of nationals of Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen, subject to the exceptions discussed below". This document was never before disclosed to the plaintiffs, nor was it disclosed to this Court at the hearing on January 28-29, 2017. Plaintiffs reserve their right to further amend this Amended Petition once the purported action of the Assistant Secretary has been investigated."

An individual who was in the United States at the time this revocation notice was issued, should make sure to continue to maintain all the terms and conditions of his or her nonimmigrant status. See NAFSA's Visa Revocation Basics for some background information on visa revocations, the impact of a visa revocation on nonimmigrant status, and reinstatement of revoked visas.

Waiver of the entry ban and visa reinstatement 

Section 3(g) of the Executive Order provides for the following "waiver" of the 3(c) or eventual 3(e) entry bans:

"(g) Notwithstanding a suspension pursuant to subsection (c) of this section or pursuant to a Presidential proclamation described in subsection (e) of this section, the Secretaries of State and Homeland Security may, on a case-by-case basis, and when in the national interest, issue visas or other immigration benefits to nationals of countries for which visas and benefits are otherwise blocked."

As discussed above, DHS Secretary Kelly has already used this provision to find that admitting lawful permanent residents with a valid I-551 is "in the national interest."

Mechanics of requesting a waiver under Section 3(g) 

It is not clear what the mechanism for requesting a waiver under Section 3(g) would be for other groups or individuals. Nor is it clear what type of facts could persuade DHS or DOS that such a waiver would be "in the national interest."

On February 1, 2017, the Department of State informed NAFSA that DOS is currently working out the waiver process with CBP, and they hope to make more information about the process available in the next few days. Hopefully the information will answer questions such as:

  • What is the specific procedure for requesting a waiver?
  • How will a waiver reinstate a visa that has been revoked under the Executive Order?
  • Once a waiver is authorized, how will notice that a particular individual has been cleared for travel and entry to the United States be communicated to the traveler and to DHS, CBP, and carriers such as airlines.  

Statutory authority invoked

The authority invoked to issue Executive Order 13769 is INA 212(f), codified at 8 USC 1182(f), a rarely used, pre-existing law which gives any President the following broad authority:

(f) Suspension of entry or imposition of restrictions by President. Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. Whenever the Attorney General finds that a commercial airline has failed to comply with regulations of the Attorney General relating to requirements of airlines for the detection of fraudulent documents used by passengers traveling to the United States (including the training of personnel in such detection), the Attorney General may suspend the entry of some or all aliens transported to the United States by such airline.

The list "of aliens from countries" that are affected by the 90-day entry ban

The Executive Order takes the list established by INA 217(a)(12), a pre-existing law which restricts individuals from participating in the Visa Waiver Program (WB and WT categories), and

  1. Applies the list of countries to "aliens from countries designated" under INA 217(a)(12), which were the 7 countries listed at the beginning of this advisory; and
  2. Extends the scope of the list to "suspend entry into the United States, as immigrants and nonimmigrants"

The public as well as the immigration agencies have been interpreting and applying the language of the Executive Order since it was issued. It is still a fluid situation. Here are some things to keep in mind.

What does it mean to "be from" a country? 

It is unclear what it means to be "from" a country under the Executive Order, but it could be interpreted to include citizens, passport holders, individuals who are dual citizens of one of the 7 countries and any country other than the United States, and nationals of one of the 7 countries.

Two CBP FAQs address how CBP determines who is "from" where, and how the view dual nationals:

FAQ: Does "from one of the seven countries" mean citizen, national or born in?

CBP Response to FAQ: Travelers are being treated according to the travel document they present.

... and this FAQ:

FAQ: Does this Executive Order apply to dual nationals of the seven countries who want to enter the U.S.? If they apply for entry based on their citizenship from one of the countries NOT on the list, will they be allowed entry?

CBP Response to FAQ: Yes, but travelers 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.

Remember that these are just FAQs. Individuals with questions should discuss risks and strategies of their particular situation with an experience immigration lawyer.

Will there be any other countries added?

Note that INA 217(a)(12) leaves open the designation of other countries, and so the list of 7 countries could be expanded on that basis too.

Remember that the source of the list of countries affected by the Executive Order is INA 217(a)(12), a provision added for another purpose that restricted entry under the Visa Waiver Program. INA 217(a)(12) also contains provisions related only to the Visa Waiver Program, which are unrelated to the Executive Order. For example, INA 217(a)(12) also restricts entry under the Visa Waiver Program (i.e., WB and WT status) for people who travel to the designated countries, even if they are not a citizen or national of those countries. The Executive Order's use of INA 217(a)(12) appears to be limited to identifying a list of countries, and does not appear to apply to a non-national of one of those countries who has only traveled to one of the countries. Anyone with questions should consult an experienced immigration lawyer.

Some examples of the "from" concept, which individuals should discuss with an immigration lawyer 

  • Example 1) An individual born in Iran but who later became a British citizen (dual Iranian/British citizen) now seeks entry to the United States as an O-1 alien of extraordinary ability on her British passport. Under the CBP FAQ identified above, the determination of where this person was "from" would be made from the passport the individual presents to CBP. Under CBP's FAQ, this individual may be able to enter the United States if he presents his British passport with a valid O-1 visa to CBP. However, it would be wise to seek the advice of an experienced immigration lawyer before traveling.
  • Example 2) An Iraqi citizen became a U.S. lawful permanent resident several years ago. With a valid I-551 green card, she may be able to travel and reenter on the basis of the lawful permanent resident exception discussed above. However, it would be wise to seek the advice of an experienced immigration lawyer before traveling.
  • Example 3) An F-1 student from Iran was doing a semester of study abroad in France the day the Executive Order was signed. He has a valid F-1 visa and now wishes to return to the United States. He is subject to the Executive Order, though, and now cannot reenter the United States.
  • Example 4) A professor in TN status under NAFTA who is a dual citizen of Canada and Yemen was in Canada the day the Executive Order was signed. She now wants to reenter the United States in TN status by car through a land port of entry. As a Canadian citizen she is exempt from the requirement to have a visa. Under CBP's FAQ, this individual may be able to enter the United States if she presents her Canadia passport with valid TN documentation to CBP. However, it would be wise to seek the advice of an experienced immigration lawyer before traveling.
  • Example 5) An individual born in Syria who subsequently becomes a U.S. citizen, but retains his Syrian citizenship (i.e., dual citizenship with the United States and one of the 7 countries). Since U.S. citizens are not aliens, and therefore cannot be classified as an immigrant or nonimmigrant, this individual would not be subject to the ban, since the ban applies to "immigrants and nonimmigrants."

Please note that these examples are to illustrate the principles of the "from" concept only. They are not legal advice. Also remember that the examples dealing with dual citizenship are based only on CBP's FAQs. Individuals with questions should discuss risks and strategies of their particular situation with an experience immigration lawyer.

Legal challenges to Executive Order 13769

Regarding legal challenges to the Executive Order 13769 entry ban, on January 28, 2017 the ACLU posted on its website that, "A federal judge granted the American Civil Liberties Union's request for a nationwide temporary injunction that will block the deportation of all people stranded in U.S. airports under President Trump's new Muslim ban." There also have been a number of other lawsuits in other jurisdictions. In a January 29, 2017 statement, DHS stated that it has immediately started to comply with court orders. Although the court orders may halt an individual's removal (deportation) they might not require DHS to release a person from detention. Individuals who wish to inquire how any court order might apply to them specifically should seek experienced legal counsel.

For some more background on legal challenges, consult:

  • The American Immigration Council's Practice Advisory, Challenging President Trump's Ban on Entry
  • List of related litigation, compiled by The University of Michigan Law School's Civil Rights Litigation Clearinghouse
  • See the top of this page for information on the Temporary Restraining Order arising out of the State of Washington v. Trump et al. case.

The question of the entry ban and immigration benefits other than visas and entry

Once the entry bar provisions of the Executive Order are understood, one of the next things you might ask is whether the Executive Order will also somehow be applied during the 90 days of the entry ban to agency adjudications of immigration benefits other than visas or entry.

These benefits might include, for example, U.S. Citizenship and Immigration Services (USCIS) benefits like applications for practical training, H-1B and I-140 petitions, changes of status, etc., or benefits or adjudications done by the Student and Exchange Visitor Program (SEVP) or the Department of State's exchange visitor program offices.

Until February 3, 2017, NAFSA had received no direct information from any agency regarding a "hold" on their adjudication of benefits in connection with the Executive Order. On January 31, 2017, NAFSA inquired directly with USCIS headquarters, and is also inquiring with SEVP and the Department of State's Office of Private Sector Exchange. Until we hear otherwise from the agencies, we suggest that schools, students, and scholars continue to apply for benefits, comply with all filing deadlines and eligibility windows, and respond to any RFE (Request for Evidence) received from an agency as usual. Schools and their responsible officials (DSOs, ROs, individuals with signature authority for employment-based petitions) should continue to grant, certify, or recommend benefits that are within their regulatory authority to grant or recommend, and to report, respond, and update systems such as SEVIS as usual.

Updates:

On February 3, 3017, the USCIS website was updated with the following message regarding USCIS continuing to adjudicate most USCIS benefits applications:

"USCIS continues to adjudicate applications and petitions filed for or on behalf of individuals in the United States regardless of their country of origin, and applications and petitions of lawful permanent residents outside the U.S. USCIS also continues to adjudicate applications and petitions for individuals outside the U.S. whose approval does not directly confer travel authorization. Applications to adjust status also continue to be adjudicated, according to existing policies and procedures, for applicants who are nationals of countries designated in the Jan. 27, 2017, "Executive Order: Protecting the Nation From Foreign Terrorist Entry Into the United States." We will provide additional guidance as it becomes available."

Seeking legal counsel

The ambiguities and other unanswered questions of the Executive Order are cause for individuals to get advice from an experienced immigration lawyer if they have questions about whether their nationality, country of birth, country of residence, or travel history would make them subject to the Executive Order, or for questions about any possible relief from the consequences of the Executive Order.