Travel Advisory for Nationals of Certain Countries Pursuant to Executive Orders

May 28, 2017

 

Shortlink to this advisory: www.nafsa.org/EOentry

Updates

Court orders from two U.S. District Courts (Maryland and Hawai'i) temporarily prevent the Government from enforcing the Section 2(c) 90-day entry bar of Executive Order 13780. The Hawai'i Court's preliminary injunction prevents enforcement of all of Section 2 of the executive order, which includes a block on the prospective "indefinite" entry bar of Section 2(e) as well. The Government has appealed both the Maryland and Hawai'i orders, but on May 25, 2017, the appeals court upheld the district court's preliminary injunction. That same day, Attorney General Jeff Sessions announced that the Department of Justice would ask the Supreme Court to review the Fourth Circuit's ruling. A May 26, 2017 AP article discusses possible Supreme Court scenarios. See NAFSA's Executive Order Litigation Updates to stay current.

Other sections of Executive Order 13780 that are not enjoined by court order became effective at 12:01 a.m. eastern time on March 16, 2017.

Executive Order Litigation Updates 

Read Executive Order 13780 


Effective Dates

The new executive order set a 90-day entry bar on certain nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen. The 90-day period would start on the executive order's effective date, March 16, 2017 at 12:01 a.m. eastern time (10 days after the Executive Order was signed). This 90-day period would end on June 13 or 14, 2017, depending on whether you count the first and last days of the 90-day period.

Section 13 of Executive Order 13780 also provides that "Executive Order 13769 of January 27, 2017, is revoked as of the effective date of this order."

Court orders from two U.S. District Courts (Maryland and Hawai'i) temporarily prevent the Government from enforcing the Section 2(c) 90-day entry bar of Executive Order 13780. The Hawai'i Court's preliminary injunction prevents enforcement of all of Section 2 of the executive order, which includes a block on the prospective "indefinite" entry bar of Section 2(e) as well.

Executive Order Litigation Updates

Executive Order 13780 provisions other than Section 2 (the entry bars) and Section 6 (the 120-day refugee admissions bar) are not included in the lawsuits or court orders, and became effective at 12:01 a.m. eastern time on March 16, 2017, for example:

Countries Covered

The 90-day entry bar called for by Executive Order 13780 affects citizens of six of the seven countries that had been selected in the prior 90-day bar. Iraq was removed from the list of countries in the new executive order.

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

Basics of the Section 2(c) entry bar: the rule and exceptions to the rule

Section 2(c) Executive Order 13780 establishes a new 90-day bar on entry of certain citizens of the 6 countries, effective March 16, 2017. The 90-day bar directs "that the entry into the United States of nationals of those six countries be suspended for 90 days from the effective date of this order, subject to the limitations, waivers, and exceptions set forth in sections 3 and 12 of this order." Following a common regulatory model, the executive order sets a general rule that is modified by exceptions and waivers to the entry bar.

General rule

Section 3(a) establishes the general scope of the entry bar. Individuals who are outside the scope of the bar are not subject to the bar, and would therefore not need an exception or a waiver in order to travel to and from the United States as usual.

Section 3(a) - Scope of the entry bar

(a) Scope. Subject to the exceptions set forth in subsection (b) of this section and any waiver under subsection (c) of this section, the suspension of entry pursuant to section 2 of this order shall apply only to foreign nationals of the designated countries who:

(i) are outside the United States on the effective date of this order; 

(ii) did not have a valid visa at 5:00 p.m., eastern standard time on January 27, 2017; and 

(iii) do not have a valid visa on the effective date of this order.

 

Interpreting this provision, the DHS executive order FAQ states,

Who is subject to the suspension of entry under the Executive Order?

 "Per the Executive Order, foreign nationals from Sudan, Syria, Iran, Libya, Somalia, and Yemen, who are outside the United States and who did not have a valid visa at 5 p.m. Eastern Standard Time on January 27, 2017, and do not have a valid visa on the effective date of this order are not eligible to enter the United States while the temporary suspension remains in effect. Thus any individual who had a valid visa either on January 27, 2017 (prior to 5:00 PM) or holds a valid visa on the effective date of the Executive Order is not barred from entry."

The section 3(a) scope provision defines the group that is subject to the new entry bar starting November 17, 2017. Read inversely, it seems to indicate that an individual who meets one of the following criteria will by definition not be subject to the bar:

  • An individual who is inside the United States on March 16, 2017; or
  • An individual who is outside the United States on March 16, 2017, but had a valid visa as of 5:00 p.m., eastern standard time on January 27, 2017 (the date Executive Order 13769 was signed); or
  • An individual who is outside the United States on March 16, 2017, but has a valid visa as of March 16, 2017

However, the wording in the Executive Order is somewhat ambiguous. See the Unanswered Questions section below for some discussion.

Exceptions

Sections 3 and 12 of Executive Order 13780 establish the following exceptions. Individuals who fall into any of the categories listed in the section 3(b) Exceptions are not subject to the entry bar, and can continue to travel to and from the United States as usual.

Section 3(b) - Exceptions to the entry bar

(b)  Exceptions.  The suspension of entry pursuant to section 2 of this order shall not apply to:

(i)    any lawful permanent resident of the United States;

(ii)   any foreign national who is admitted to or paroled into the United States on or after the effective date of this order;

(iii)  any foreign national who has a document other than a visa, valid on the effective date of this order or issued on any date thereafter, that permits him or her to travel to the United States and seek entry or admission, such as an advance parole document;

(iv)   any dual national of a country designated under section 2 of this order when the individual is traveling on a passport issued by a non-designated country;

(v)    any foreign national traveling on a diplomatic or diplomatic-type visa, North Atlantic Treaty Organization visa, C-2 visa for travel to the United Nations, or G-1, G-2, G-3, or G-4 visa; or

(vi)   any foreign national who has been granted asylum; any refugee who has already been admitted to the United States; or any individual who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture.

 

And so, the new entry bar will also not apply to the following individuals:

  • U.S. lawful permanent residents (holders of a valid Form I-551 (green card) or temporary I-551 stamp)
  • Dual citizens of one of the 6 countries and the United States (such individuals are always considered U.S. citizens)
  • Dual citizens of one of the 6 countries and another country not on the list of 6, who will enter the United States on the basis of a valid passport issued by the country not on the list of 6
  • The following nonimmigrants -
    • NATO nonimmigrants,
    • C-2 travelers to the United Nations, and
    • G-1, G-2, G-3, or G-4 nonimmigrants (working for an international organization)
     
  • Asylees and refugees already admitted to the United States
  • Individuals who been granted -
    • withholding of removal,
    • advance parole, or
    • protection under the Convention Against Torture
     
  • Any foreign national who is admitted to or paroled into the United States on or after March 16, 2016

Waivers

Individuals who are citizens of one of the 6 countries who are not exempt by definition from the bar, or who do not fall within one of the above-listed exceptions, would be subject to the new entry bar, unless they qualify for a waiver. Section 3(c) of Executive Order 13780 gives consular officers and CBP officials the authority to waive the bar on entry on a case-by-case basis, if a foreign national who would otherwise be subject to the bar "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."

Sections 3(c) waivers

(c)  Waivers.  Notwithstanding the suspension of entry pursuant to section 2 of this order, a consular officer, or, as appropriate, the Commissioner, U.S. Customs and Border Protection (CBP), or the Commissioner's delegee, may, in the consular officer's or the CBP official's discretion, decide on a case-by-case basis to authorize the issuance of a visa to, or to permit the entry of, a foreign national for whom entry is otherwise suspended 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. Unless otherwise specified by the Secretary of Homeland Security, any waiver issued by a consular officer as part of the visa issuance process will be effective both for the issuance of a visa and any subsequent entry on that visa, but will leave all other requirements for admission or entry unchanged.

Because the standard for establishing eligibility for a waiver is so broad, section 3(c) also offers nine examples of circumstances where a case-by-case waiver could be appropriate. These examples in the executive order are not an exclusive list, nor are they a "guarantee." Other situations where an applicant can establish that his or her entry meets the standard for a waiver might also be considered by a consular or immigration official.

(i)    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;

(ii)    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;

(iii)   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;

(iv)    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;

(v)    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;

(vi)    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;

(vii)   the foreign national is traveling for purposes related to an international organization designated under the International Organizations Immunities Act (IOIA), 22 U.S.C. 288 et seq., traveling for purposes of conducting meetings or business with the United States Government, or traveling to conduct business on behalf of an international organization not designated under the IOIA;

(viii)  the foreign national is a landed Canadian immigrant who applies for a visa at a location within Canada; or

(ix)    the foreign national is traveling as a United States Government-sponsored exchange visitor.

In terms of the waiver mechanism, it appears that there will be no separate waiver request that is not connected to an actual application for a visa or for admission to the United States. The DHS executive order FAQ states,

What is the process for overseas travelers affected by the Executive Order to request a waiver?

"Waivers for overseas travelers without a valid U.S. visa will be adjudicated by the Department of State in conjunction with a visa application."

The DOS travel.state.gov website provides some more detail about the process:

Q: Will you process waivers for those affected by the E.O.? How do I qualify for a waiver to be issued a visa?

As specified in the Executive Order, consular officers may issue visas to nationals of countries identified in the E.O. on a case-by-case basis, when they determine: that issuance is in the national interest, the applicant poses no national security threat to the United States, and denial of the visa would cause undue hardship.

An individual who wishes to apply for a waiver should apply for a visa and disclose during the visa interview any information that might qualify the individual for a waiver.  A consular officer will review each case to determine if the applicant is affected by the E.O. and, if so, whether the case qualifies for a waiver.

Waiver decisions will be made by the consular officer abroad at the time of adjudication.

The status of visas issued before March 16, 2017, and visa appointments

Any visa issued before March 16, 2017 will continue to be valid for the duration and number of entries for which it was issued, and will not be revoked solely on the basis of the executive order. Section 12(c) of Executive Order 13780 states,

"(c)  No immigrant or nonimmigrant visa issued before the effective date of this order shall be revoked pursuant to this order."

Regarding visas that had been revoked or canceled under the prior Executive Order 13769, the new executive order states at section 12(d),

"(d)  Any individual whose visa was marked revoked or marked canceled as a result of Executive Order 13769 shall be entitled to a travel document confirming that the individual is permitted to travel to the United States and seek entry.  Any prior cancellation or revocation of a visa that was solely pursuant to Executive Order 13769 shall not be the basis of inadmissibility for any future determination about entry or admissibility."

The DHS executive order FAQ applied the valid visa concept in this item:

Q3. I am a national from one of the six affected countries currently overseas and in possession of a valid visa, but I have no prior travel to the United States. Can I travel to the United States?

"Per the Executive Order, foreign nationals from Sudan, Syria, Iran, Libya, Somalia, and Yemen who have valid visas will not be affected by this Executive Order. No visas will be revoked solely based on this Executive Order."

The Department of State (DOS) began issuing guidance on implementation of Executive Order 13780 as well. DOS stated on its website:

"We do not plan to cancel any previously scheduled visa appointments. After the new Executive Order goes into effect, any individual who believes he or she is eligible for a waiver or exemption should apply for a visa and disclose during the visa interview any information that might qualify the individual for a waiver/exemption. A consular officer will carefully review each case to determine whether the applicant is affected by the Executive Order, and, if so, whether the applicant qualifies."

F/M/J nonimmigrants in DHS and DOS guidance materials

The DHS executive order FAQ contained the following questions/answers directed specifically to students and exchange visitors in the F, M, or J nonimmigrant categories or their dependents:

Q24. Are international students, exchange visitors, and their dependents from the six countries (such as F, M, or J visa holders) included in the Executive Order? What kind of guidance is being given to foreign students from these countries legally in the United States?

"The Executive Order does not apply to individuals who are within the United States on the effective date of the Order or to those individuals who hold a valid visa. Visas which were provisionally revoked solely as a result of the enforcement of Executive Order 13769 are valid for purposes of administering this Executive Order. Individuals holding valid F, M, or J visas may continue to travel to the United States on those visas if they are otherwise valid. Please contact the State Department for information about how the Executive Order applies to visa applicants."

Q25. What happens to international students, exchange visitors or their dependents from the six countries, such as F, M or J visa holders if their visa expires while the Executive Order is in place and they have to depart the country?

"The Executive Order does not affect F, M, or J visa holders if they currently have a valid visa on the effective date or held a valid visa on January 27, 2017 prior to the issuance of the Executive Order. With that said, travelers must have a valid visa to travel to the United States, regardless of the Executive Order.  Travelers whose visa expires after the effective date of the Executive Order must obtain a new, valid visa to return to the United States."

The DOS travel.state.gov website contained this FAQ regarding students and employees:

Q: I’m a student or short-term employee that was temporarily outside of the United States when the Executive Order went into effect.  Can I return to school/work?

If you have a valid, unexpired visa, the Executive Order does not apply to your return travel.

If you do not have a valid, unexpired visa, the Executive Order provides several examples of categories of cases that may qualify for a discretionary waiver.  These waivers will be considered, on a case-by-case basis, to determine if the traveler’s entry would be in the national interest, would not threaten national security, and if denial would impose undue hardship.  Among the examples provided, a foreign national who has previously been admitted to the United States for a continuous period of work, study, or other long-term activity, who is outside the United States on the effective date of the Order, may be considered for a waiver if they seek to reenter the United States to resume that activity and the denial of reentry during the suspension period would impair the activity.

An individual who wishes to apply for a waiver should apply for a visa and disclose during the visa interview any information that might qualify the individual for a waiver.  A consular officer will carefully review each case to determine whether the applicant is affected by the E.O. and, if so, whether the case qualifies for a waiver.

Unanswered questions and continued need for guidance and interpretation

The March 6, 2017 Executive Order 13780 is still very new, and many provisions will require additional interpretation and agency guidance. We also do not know how the new executive order will impact the ongoing litigation arising out of the January 25, 2017 Executive Order 13769, or whether new suits might be filed against the March 6 order.

The wording in the new Executive Order is also somewhat ambiguous. For example, we hope for more clarification on common questions such as how exactly the order would apply or not apply to individuals who:

  • Are inside the United States in valid nonimmigrant status on March 16, 2017, but who had changed status in the United States and therefore do not have a nonimmigrant visa in their new nonimmigrant classification?
  • Are inside the United States in valid nonimmigrant status on March 16, 2017, but have a visa that expired (or whose maximum number of entries had already been used)
    • Before January 27, 2017
    • Between January 27, 2017 and March 16, 2017
    • After March 16, 2017
     

Future, indefinite bar under section 2(e)

Section 2(e) of the March 6, 2017 Executive Order 13780 establishes the framework for a separate indefinite entry bar that could apply to any country that is unwilling or unable to provide the United States with the information that it decides is needed "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." The section 2(e) bar is very similar to the 3(e) bar established in Executive Order 13769. For more details, consult:

NAFSA Advisory on Future Indefinite Entry Bar

Disclaimer

This NAFSA advisory consists of general information only, and does not constitute legal advice. Individual students and scholars with detailed questions, or who are in need of legal advice, should be encouraged to consult an experienced immigration attorney.