Temporary restraining order prohibiting enforcement of Executive Order 13769 still in place

News Release from Jewell Stewart & Pratt – February 6, 2017 As of Monday, February 6, 2017, the United States District Court for the Western District of Washington’s temporary restraining order prohibiting the federal government from enforcing the travel ban in Executive Order 13769 of January 27, 2017 on a nationwide basis is still in place.

The White House’s motion for a stay pending its appeal before the Ninth Circuit Court of Appeals is set for oral argument at 3:00 PM PT on Tuesday, February 7th in front of a three-judge panel. All U.S. land and air ports of entry are prohibited from enforcing the Executive Order until further orders from the court.

© Jewell Stewart & Pratt PC 2017

White House and USCIS clarifications regarding Executive Order banning U.S. entries by citizens of seven countries

News Release from Jewell Stewart & Pratt – February 3, 2017 As discussed in our prior posts, an Executive Order signed by President Trump on January 27, 2017 bans immigrant and nonimmigrant entries into the United States, for at least 90 days, by nationals of seven countries – Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen.

In the days following the Executive Order, its ambiguous language and the inconsistent application of its provisions at U.S. ports of entry and in other parts of the U.S. government created confusion among foreign-born travelers to the United States.  In addition to several clarifications mentioned in this post, the White House and USCIS have issued further guidance, including the following:

• Lawful Permanent Residents: A February 1, 2017 White House memorandum to the acting Secretary of State, the acting Attorney General, and the Secretary of Homeland Security, stated that Sections 3(c) and 3(e) of Executive Order 13769 does not apply to lawful permanent residents (LPRs) of the United States. Therefore, LPRs who are nationals of one of the seven countries no longer need to receive a waiver to enter the United States.

• USCIS Benefits Requests: A February 2, 2017 memo from USCIS Acting Director Lori Scialabba to USCIS employees stated that Section 3 of the Executive Order does not affect USCIS adjudication of applications and petitions filed for or on behalf of individuals in the U.S regardless of nationality.

© Jewell Stewart & Pratt PC 2017

Update on rumored expansion of U.S. entry ban to additional countries

News Release from Jewell Stewart & Pratt – February 2, 2017 Seven countries are currently listed in the President’s Executive Order of January 27, 2017 banning entry of some foreign nationals to the United States – Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen. On February 1, 2017, unconfirmed rumors circulated regarding the potential addition of up to ten more countries/regions, as reported in our second post of 02/01/2017.

As a follow up to the unconfirmed rumors, the U.S. Department of State (DOS) informed the American Immigration Lawyers Association (AILA) on February 2, 2017 that there are no current plans to expand the travel ban beyond current seven countries.

Further, DOS issued a statement on February 2, 2017 clarifying that, “This Executive Order does not restrict the travel of dual nationals from any country with a valid U.S. visa in a passport of an unrestricted country. Our Embassies and Consulates around the world will continue to process visa applications and issue nonimmigrant and immigrant visas to otherwise eligible visa applicants who apply with a passport from an unrestricted country, even if they hold dual nationality from one of the seven restricted countries.”

Please refer to our prior posts for more information on the Executive Order of January 27, 2017 (Executive Order 13769, titled “Protecting the Nation from Terrorist Attacks by Foreign Nationals”) and subsequent clarifications by the Department of Homeland Security about how it will treat Lawful Permanent Residents, persons with dual nationality, existing nonimmigrant and immigrant visas, and more.

© Jewell Stewart & Pratt PC 2017

Unconfirmed rumors - more countries could be added to U.S. entry ban

News Release from Jewell Stewart & Pratt – February 1, 2017 Seven countries are currently listed in the President's Executive Order of 1/27/2017 banning entry of some foreign nationals to the United States – Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen. There are unconfirmed rumors that the following countries/regions could be added to the ban on entry:

Afghanistan Colombia Egypt Lebanon Pakistan Southern Philippines Sulu/Sulawesi seas littoral Trans-Sahara (Mali) Turkey Venezuela

Anyone with country of birth, nationality or citizenship from these countries/regions may wish to consider not departing the United States, if they are already here; or returning to the United States immediately, if they are abroad.

Please refer to our prior posts for more information. In particular, our first post of 02/01/2017 discussed clarifications by the Department of Homeland Security about how it will treat Lawful Permanent Residents, persons with dual nationality, existing nonimmigrant and immigrant visas, and more.

© Jewell Stewart & Pratt PC 2017

DHS clarifications regarding Executive Order banning U.S. entries by citizens of seven countries

News Release from Jewell Stewart & Pratt – February 1, 2017 As discussed in our post of January 30, 2017, an Executive Order signed by President Trump on January 27, 2017 bans immigrant and nonimmigrant entries into the United States, for at least 90 days, by nationals of seven countries – Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen. Other countries may be added to the list and adjudications of other immigration benefits could be affected. (The Executive Order is also targeted at refugee admissions, with longer bans; however, our posts are currently focused on immigrant and nonimmigrant visa provisions.)

In the days following the Executive Order, its ambiguous language and the inconsistent application of its provisions at U.S. ports of entry and in other parts of the U.S. government created confusion among foreign-born travelers to the United States. Much remains to be resolved through litigation and legislation, but in the meantime, the U.S. Department of Homeland Security (DHS) has provided some clarifications. In a Q&A posted by U.S. Customs & Border Protection (CBP) on 1/31/2017, CBP made the following clarifications:

• Lawful Permanent Residents: Individuals from the listed countries who are U.S. lawful permanent residents (LPRs, or green card-holders) will be exempted from the bar on entry “in the national interest,” unless CBP finds “significant derogatory information” indicating a serious threat to public safety and welfare. Green card holders intending to travel to the United States must apply for a waiver of the bar. So far, a majority of such waiver applications have been granted; however, the term “significant derogatory information” has not been defined.

• Dual Nationality: The Executive Order refers to individuals “from” the seven countries, leaving open the question whether dual citizens of one of these countries and any other country outside the United States would be subject to the bars on entry. CBP has now clarified that “Travelers are being treated according to the travel document they present.” Therefore, for example, a dual citizen of Iran and Canada who presents a Canadian passport should be treated as a Canadian applicant for admission. Note that this is not apparent from the Executive Order itself; it is CBP’s policy statement and may be subject to change.

• Visas Immediately Revoked: Upon issuance of the Executive Order, all immigrant and nonimmigrant visas issued to citizens of the seven countries were revoked. Individuals physically in the United States and maintaining legal status did not lose their status as a result of the order, but any visa that would have permitted them to return to the United States from travel abroad ceased to be valid. Visa-holders outside the United States who attempt to return will not be permitted to do so at this time if they are citizens of one of the seven countries. With regard to international students, interns and trainees on F-1, J-1, and M-1 visas that are canceled, suspended or revoked because of the Executive Order, CBP has stated that DHS is evaluating whether those who are precluded from returning to the United States “will be considered to have maintained their status as F1 or M1 students.” The meaning of this is not clear, but it suggests that students unable to maintain the required full-time course of study due to their inability to enter the United States, should they eventually be admitted to the United States to resume their studies, might not be required to apply for “reinstatement” to valid status as they otherwise would be required to do.

• Naturalization Applications: The Executive Order has prompted many longtime U.S. permanent residents to finally take the step of applying to become naturalized U.S. citizens. Despite rumors of a freeze on USCIS processing of naturalization applications and other visa- and immigration-related applications, the government has stated that “USCIS will continue to adjudicate N-400 applications for naturalization and administer the oath of citizenship consistent with prior practices.” Naturalization applicants from certain countries, including the seven countries named in the Executive Order, have historically been more likely to experience longer delays and extra scrutiny in the naturalization process, and this is not expected to change.

© Jewell Stewart & Pratt PC 2017

New developments following Executive Order of 1/27/2017 banning entries into United States by nationals of seven countries

News Release from Jewell Stewart & Pratt – January 30, 2017 As reported in our most recent post, an Executive Order signed by President Trump on Friday, January 27, 2017 bans immigrant and nonimmigrant entries into the United States, for at least 90 days, by nationals of seven countries – Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen. Other countries may be added to the list and adjudications of other immigration benefits could be affected. (The Executive Order is also targeted at refugee admissions, with longer bans; however, our posts for the time being are focused on immigrant and nonimmigrant visa provisions.) The Executive Order has been challenged on legal and constitutional grounds, and further lawsuits are expected, as well as legislation that will be introduced in both houses of Congress to overturn the bans.

The ACLU obtained a court order staying enforcement of the Executive Order on Saturday 1/29/2017. However, the stay only applies to a narrow class of migrants and news reports suggest that not all Customs & Border Protection personnel are complying with it. Meanwhile, there are unconfirmed reports circulating that adjudication by USCIS of applications for visa-related “benefits” may have been halted for applicants and beneficiaries from the seven countries. This would include naturalization applications, adjustment-of-status applications, I-140 immigrant petitions, H-1B petitions, and other applications and petitions within USCIS’s jurisdiction. Although the Executive Order of 1/27/2017 appeared to be potentially expandable to "benefits," not just entries, it did not order a ban on adjudications of benefits applications. That this appears to be happening anyway suggests that another, more comprehensive policy statement may be imminent.

Because of the Executive Order, we strongly advise that individuals with past or present citizenship or birth ties to any of the listed countries who live, study, or work in the U.S. not travel outside the U.S. without first consulting an immigration expert. The Department of Homeland Security clarified on Sunday 1/29/2017 that lawful permanent residents of the United States (i.e., green card holders) would qualify for a “national interest” exception in the Executive Order; however, having a green card still does not guarantee admission back into the United States of citizens from the seven countries. Green card holders (which the administration apparently intends to mean only those individuals who are already U.S. permanent residents and are in physical possession of unexpired green cards) reportedly are being allowed to board U.S.-bound aircraft, but on arrival at the U.S. port of entry, they are being “assessed” for national security concerns and granted a “waiver” of the executive order on a case-by-case basis.

Individuals who are from of one of the seven countries and who wish to enter the United States in nonimmigrant status (e.g., B, F, H, I, J, L, O, TN, etc.) are not being allowed to board flights to the United States. If they had visa appointments at U.S. consulates, those appointments have been cancelled. Their visa applications will not be processed, even if the application is for a visa classification the individual already held in the United States and the visa is needed only to return from a trip abroad.

This is a rapidly evolving situation, and there is a lack of clarity regarding key terms. For example, the ban refers to individuals “from” the seven countries, and this could include citizens and nationals of those countries, holders of passports from those countries, and individuals who are dual citizens of one of the seven countries and any other country outside the United States (or, in an extreme scenario apparently not contemplated by the Executive Order – though it could be – dual citizens of one of the listed countries and the United States itself). The ambiguous drafting of the Executive Order and the reported differences in how it is being applied by CBP at ports of entry have made it difficult to say with certainty who “from” one of the listed countries will be allowed entry.

There is a chance the list of seven countries will be expanded, and that the bans will be not only to entry, but – as already appears to be happening – to other immigration “benefits,” which could include extensions-of-stay, change-of-status, adjustment of status, etc. Moreover, it is important not to forget that a federal regulation pre-dating the Executive Order bars the entry of visitors to the United States under the Visa Waiver Program (ESTA) to anyone who travels to the designated countries, even if they are not a citizen or national of those countries.

The ambiguities in the Executive Order’s language and the changing and inconsistent application are cause to get advice from an immigration expert regarding questions about whether one’s nationality, country of birth, country of residence, or travel history would make them subject to the ban on entry, or eligible for relief from the ban.

© Jewell Stewart & Pratt PC 2017

Executive Order bans entries into United States, for 90 days, by nationals of seven countries

News Release from Jewell Stewart & Pratt – January 28, 2017 An Executive Order signed by President Trump on Friday, January 27, 2017 bans immigrant and nonimmigrant entries into the United States, for at least 90 days, by nationals of seven countries -- Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen. Other countries may be added to the list and adjudications of other immigration benefits could be affected.

The Executive Order also suspends the Visa Interview Waiver Program (VIWP). The VIWP allowed U.S. consular officers to waive interviews for certain applicants seeking to renew nonimmigrant visas in the same visa classification as their previously issued visa. All nonimmigrant visa applicants are now required to attend an interview unless an interview is, by statute, not required.

The Executive Order is already being challenged on legal and constitutional grounds. While it does not explicitly name Islam, it clearly targets Muslim-majority countries, raising legal and constitutional questions of due process, freedom of religion, discrimination, and the president’s authority over immigration in general.

© Jewell Stewart & Pratt PC 2017