The flurry of activity and confusion surrounding the 90-day entry bar instituted by Section 3(c) of Executive Order 13769 has certainly commanded our time and energy (see the NAFSA Travel Advisory at www.nafsa.org/EOentry). That entry bar is currently inactive, due to the Ninth Circuit's temporary restraining order, and the 90 days set by the Executive Order will expire on April 27, 2017. So let's take a moment now to consider the other entry bar contemplated by the same Executive Order, an indefinite entry bar that could be established under Section 3(e) of Executive Order 13769.
Executive Order 13769 Section 3(e) indefinite entry bar
Sections 3(a) and 3(b) of Executive Order 13769 require the Secretary of the Department of Homeland Security, in consultation with the Secretary of State and the National Intelligence Director, to submit a report to the President (and copying the Secretary of State and Director of National Intelligence), containing:
- A determination of the information needed from any country to adjudicate a visa, admission, or other benefit under the Immigration and Nationality Act, "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;" and
- A list of countries that do not already adequately supply this information
We will refer to this as the Section 3(a) Report. DHS must submit the Section 3(a) Report to the President within 30 days of the January 27, 2017 signing of Executive Order 13769, which is February 27, 2017.
Section 3(d) of Executive Order 13769 then requires the Secretary of State to notify the countries that were on the list contained in the Section 3(a) Report that they have 60 days to start providing such information. A country's 60-day clock begins on the day it receives notice from the Secretary of State. Assuming that the Secretary of State receives his copy of the Section 3(a) Report on February 27, 2017 and then immediately notifies all such countries of their 60-day deadline, the countries would have until April 27, 2017 to indicate that they will comply. An individual country's obligation to respond may vary, depending on when it actually receives notice from the Department of State.
Section 3(e) of Executive Order 13769 then requires the following actions; we've divided it up to stress the various components of the actions:
"After the 60-day period described in subsection (d) of this section expires,
...the Secretary of Homeland Security, in consultation with the Secretary of State,
...shall submit to the President a list of countries recommended for inclusion on a Presidential proclamation
...that would prohibit the entry of foreign nationals (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)
...from countries that do not provide the information requested pursuant to subsection (d) of this section until compliance occurs."
To summarize, DHS must make a recommendation of countries to be included in an eventual Presidential proclamation. This recommendation would most likely be based on the list of countries that continue to fail to provide the requested information on its citizens who apply for U.S. visas, after having received a 60-day notice to do so. The "indefinite" entry bar under Section 3(e) would become effective only after the President actually signs such a proclamation, and remain in effect "until compliance occurs."
As is the case with the 90-day entry bar created by Section 3(c), the Section 3(e) entry bar would also rely on INA 212(f), codified at 8 USC 1182(f), a pre-existing and until now rarely used law which gives the 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.
What we do and don't know
We don't know what "information" DHS will require countries to provide regarding their citizens who apply for U.S. visas, as part of the Section 3(a) Report. The Executive Order states only that it will be information DHS deems necessary "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."
Just as we can safely assume that some countries already do provide the kind of information DHS will include in its Section 3(a) Report, we can also assume that some countries do not. A country's failure to supply such information could be due to a political decision to not provide it, a structural or situational incapacity to provide it, or other factors.
The determination of countries to include in an entry bar under Section 3(e) is not connected to the 7 countries subject to the 90-day entry bar under Section 3(c). It is not possible at this time to say which countries would receive a "60-day notice" under Section 3(d). Nor is it possible to identify which countries might be included on DHS' recommendation of countries to be included in the Presidential proclamation mentioned in Section 3(e).
The timing of the "Presidential proclamation" mentioned in Section 3(e) is not specified, but the Executive Order does state that it should not happen until the President receives the DHS secretary's Section 3(a) Report that contains a recommended list of countries to include. Given the 60-day period in which a notified country would be given to reply, it is highly unlikely that a presidential proclamation could be made under Section 3(e) before April 27, 2017 (i.e., 30 days after Executive Order 13976 was signed [for DHS to submit the Section 3(a) Report] plus 60 days [the period of time in which a notified country would have to commit to providing the information specified in the Section 3(a) Report].
The impact of being included on a presidential proclamation under Section 3(e) would probably be similar to the impact of the 90-day entry bar regarding visa validity, visa issuance, entry to the United States, and DHS benefits adjudications, but the bar would last "until compliance occurs," i.e., until the country begins providing the information specified in the Section 3(a) Report. Any future proclamation would likely be more tailored than the Executive Order 13769 3(c) 90-day bar, but we could only speculate about specifics at this point.
The president has also stated verbally that one option the administration was considering in response to the Ninth Circuit's temporary restraining order on the 90-day entry bar under Section 3(c) was a new Executive Order. It is not clear whether this refers to a proclamation under Section 3(e) or to some other executive action.