Consequences Arising from the President’s Executive Order on Immigration

January 30th, 2017 by SRW Lawyers

On January 27, 2017, President Trump signed an Executive Order (EO) “Protecting the Nation From Terrorist Attacks by Foreign Nation” which became effective immediately.  Over the course of the last two days, the EO has resulted in uncertainty, fear, litigation and support for the immigrant community.

Below are some of the highlights that we believe may directly impact our firm’s clients:

 Immediate Suspension of Issuance of Visas and Admission to the U.S. for Nationals from Designated Countries

The EO immediately suspends the issuance of visas and admission to the U.S. of nationals from the following seven (7) designated countries – Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen – for a period of 90 days (excludes those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, and C-2 visa for travel to the United Nations).  The EO indicates that additional countries could be added to the list as determined by DHS and DOS.  After the 90 day period, travel will not be immediately restored – instead, countries must undergo various vetting procedures.  During this time period, the EO does allow U.S. Dept. of State (DOS) and U.S. Dept. of Homeland Security (DHS) to issue visas, admit or grant other immigration benefits to affected individuals on a “case-by-case” basis and when it is in the “national interest”.

Who is impacted in the meantime?

  • Dual Nationals
    • The EO isn’t clear on the definition of ‘from’ the designated countries – in an abundance of caution, it may be best to interpret the term as broadly as possible – to include passport holders, citizens, nationals, dual nationals, etc.
  • U.S. Nonimmigrants & U.S. Immigrants from a Designated Country
    • This includes those individuals who were outside the U.S. at the time the EO was signed on Friday, including those in transit to the U.S.
    • Tip: If you are already in the U.S. in a valid non-immigrant status and are a national of a designated country, do not travel outside the U.S. for the near future. If you must travel, speak to an experienced immigration attorney first.
  • U.S. LPR’s (inc. Conditional LPR’s)
    • While this EO originally applied to LPR’s, DHS has since confirmed that the entry of LPR’s is deemed to be in the national interest.  Accordingly, LPR’s who are also nationals of a designated country, will be allowed to re-enter the U.S., absent significant derogatory information indicating a serious threat to public safety and welfare.
    • Tip: LPR’s who are nationals of a designated country should be prepared to be placed into secondary inspection and questioned upon re-entry into the U.S.
  • Canadians
    • DHS has indicated to Canada Officials that naturalized Canadian citizens who are also nationals of a designated country will continue to be treated as Canadian citizens (who are visa-exempt).  Locally, we have seen CBP following this practice at our U.S.-Canada Ports of Entry.

How are the various govt. agencies handling the EO?

  • U.S. Dept. of State (DOS)
    • DOS has been instructed not to issue visa to individuals of a designated country.  Pending visa appointments are being cancelled.
  • U.S. Customs & Border Protection (CBP)
    • CBP is denying entry to individuals from these designated countries despite their facially valid visas.
    • CBP is then detaining these individuals until they are able to secure a return flight to their country of origin or CBP grants them a waiver for entry (if applicable, based on any legal stays or on a case-by-case basis).
  • U.S. Citizenship & Immigration Services (USCIS)
    • There are reports that USCIS is placing a hold on applications filed by or on behalf of individuals from the countries at issue (this would include I-130’s, I-129F’s, I-765’s, etc.).
    • It is unclear whether Humanitarian Parole may still be available to affected individuals.
  • U.S. Immigration & Customs Enforcement (ICE)
    • There are reports that ICE (this presumably includes ICE Chief Counsel’s Office and ICE ERO [Enforcement & Removal Operations]) is neither approving nor denying any Prosecutorial Discretion requests until clear directives on enforcement priorities are received.
    • On January 25, 2017, President Trump signed an Executive Order “Enhancing Public Safety in the Interior of the United States” which provides for new and revised enforcement priorities for removal – noncitizens convicted of any crime, noncitizens who have been charged with committing any crime (but not yet convicted), and those noncitizens who have a final order of removal.

Suspends the Visa Interview Waiver Program

The EO immediately suspends the visa interview waiver program that is utilized by U.S. Consulates and Embassies throughout the world to facilitate the issuance and renewal of visas for certain travelers who have been deemed low risk.  The program allowed for these low risk travelers to obtain visa renewals by utilizing a “drop-box” or “mail-in” application procedure instead of personally appearing for a visa interview at their local U.S. Embassy/Consulate.

With the suspension of this program, all applicants, regardless of nationality, age and whether first-time or renewal, will need to appear in person for their visa interviews. This is likely to result in increased wait times for appointments, increased times associated with accompanying background checks (aka Administrative Processing), and an overall uncertainty for business travelers seeking to renew their existing visas while on business trips.

Should you have any questions about the above or want to discuss your specific concerns with our office, please contact us.  We look forward to assisting you.

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