Immigration Matters - 2017

Executive Order, Protecting the Nation from Foreign Terrorist Entry into the United States

Earlier this week, a new version of the controversial executive order “Protecting the Nation from Foreign Terrorist Entry into the United States" was released, simultaneously revoking the previous order. While some of the original concepts remain intact, other sections of the order were diluted in an attempt to withstand court scrutiny. The order is also scheduled to go into effect one week after its initial release to give agencies more time to prepare for implementation. The order states:

“In light of the Ninth Circuit's observation that the political branches are better suited to determine the appropriate scope of any suspensions than are the courts, and in order to avoid spending additional time pursuing litigation, I am revoking Executive Order 13769 and replacing it with this order…"

A travel ban continues for foreign nationals from six countries, instead of seven as originally ordered. There is a “temporary pause on the entry of nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen," but the order also points out the exceptions and waivers available. Iraq is excluded from this updated list because of the country's cooperation, and “the Iraqi government has expressly undertaken steps to enhance travel documentation, information sharing, and the return of Iraqi nationals subject to final orders of removal."

Below are some of the core concepts in the new order, followed by some of the potential exceptions and waiver opportunities.

• The order suspends entry of foreign nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen for 90 days; applies to individuals:

o Outside the United States on the effective date

o Who did not have a valid visa at 5 p.m. EST on January 27, 2017

o Do not have a valid visa on the effective date

• Immigrant and nonimmigrant visas issued before the effective date will not be revoked because of the new order

• Individuals with visas revoked or canceled as a result of the original order are entitled to a “travel document confirming that the individual is permitted to travel to the United States and seek entry"

• Suspends travel of refugees and decisions on applications for refugee status under U.S. Refugee Admissions Program for 120 days

• Limits refugees to a cap of 50,000 for fiscal year 2017

• Instructs the implementation of uniform screening and vetting standards and orders expedited completion of biometric entry-exit tracking system

• Gives state and local jurisdictions a “role in the process of determining the placement or settlement in their jurisdictions of aliens eligible to be admitted to the United States as refugees"

• Suspends the Visa Interview Waiver program, requiring all individuals seeking a nonimmigrant visa to undergo an in-person interview

There are several exceptions outlined in the order:

• Suspension of foreign nationals from the six countries does not apply to:

o Lawful permanent residents (green card holders)

o Foreign nationals admitted to or paroled into the U.S. on or after effective date

o Foreign nationals with non-visa documents, valid on the effective date or issued after the effective date, permitting travel to the U.S. to seek entry or admission (example: advance parole document)

o Dual national of a country when individual is traveling on a passport issued by a country other than Iran, Libya, Somalia, Sudan, Syria, or Yemen

o Foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visa, C-2, G-1, G-2, G-3, or G-4 visas

o Foreign nationals granted asylum

o Any refugee who has already been admitted to the U.S. or individual who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture

• Visa interview requirement is waived for diplomatic visas, NATO visas, C-2, G-1, G-2, G-3 and G-4 visas, in addition to those traveling with an international organization (designated under IOIA) or traveling for meetings or business with the United States Government.

• The order does not apply to those granted asylum, refugees already admitted to the U.S., or individuals granted withholding of removal or protection under the Convention Against Torture.

The order also mentions that waivers could be appropriate for specific circumstances, “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." Exceptions might be appropriate for work or study in the U.S., significant business or professional obligations, visits with family members, medical care, or travel with an international organization or for governmental purpose. There will be no changes to processing for immigrant petitions or applications, such as extensions or adjustments of status, lawful permanent resident status, or naturalization.

Even with the administration's updates to the executive order, there are legal challenges already mounting: Hawaii was the first state to ask a federal judge to block the new version. Washington Attorney General Bob Ferguson is also suing once again, after his efforts were successful in U.S. District Court when Judge James Robart first suspended the travel ban nationwide.

Assuming the court does not take action, the order is scheduled to go into effect on March 16, 2017 at 12:01 a.m. EDT. At the time of publication, no court actions to block the executive order have proceeded.

Article courtesy of Challa Law

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