POTUS Executive Order ("Travel Ban 2.0") Goes Into Effect This Thursday - March 16, 2017
The revamped version (link here) of President Trump's most recent immigration-related Executive Order ("EO") entitled "Protecting the Nation from Foreign Terrorist Entry into the United States" (original link here) goes into effect this Thursday - March 16, 2017. Despite pending challenges, the new EO is only slightly improved from its January 27, 2017, predecessor and and will negatively impact an already crippled business immigration system as well as family immigration and refugee programs (see original MIGblog coverage here).
The Travel Ban 2.0 EO:
On Friday, January 27, 2017, President Trump signed an executive order, “Protecting the Nation from Foreign Terrorist Entry into the United States.” The EO led to chaos in many of our nation’s airports and was the subject of multiple lawsuits filed around the country. On February 3, a federal district court in the state of Washington issued a nationwide temporary restraining order, prohibiting the federal government from enforcing several major sections of the EO. That decision was upheld on February 9 by the Ninth Circuit Court of Appeals, and the implementation of the EO has been suspended since that time. On March 6, 2017, the President signed a new executive order with the same title, "Protecting the Nation from Foreign Terrorist Entry into the United States.” The new EO takes effect on March 16, 2017 and expressly revokes the January 27, 2017 EO. The new EO prohibits entry into the U.S. by immigrants and visitors from six predominantly Muslim countries without requiring any individualized determination based on specific intelligence that the individuals are a security risk. The EO exempts certain categories of people, including lawful permanent residents and dual nationals traveling on a passport from a country that is not one of the six designated countries.
In addition, the new EO suspends refugee resettlement to the United States for 120 days and drastically reduces the number of refugees that the U.S. Refugee Assistance Program ("USRAP") will resettle in fiscal year 2017 from 110,000 to 50,000. Syrian refugees are no longer indefinitely banned under the new order, though they are subject to the 120-day suspension of the refugee program. The new EO no longer gives preference to individuals facing religious persecution who practice minority religions in their country of nationality.
Ban on Entry of Nationals of Muslim-Majority Countries: The order bans immigrant and nonimmigrant entries for nationals of Syria, Iran, Libya, Somalia, Sudan, and Yemen for at least 90 days. Some categorical exceptions and case-by-case waivers could be applied to nationals of these six countries. Iraq, which was included in the first EO, is not included in the new version, although Iraqi nationals will be subjected to additional scrutiny.
Before individuals from the six countries can resume entering the U.S., an assessment of each country must be conducted by the DHS Secretary, Secretary of State, and Director of National Intelligence, to determine if additional information is needed in order to adjudicate a visa or other immigration benefit. The Secretary of State will then request the additional information from each country. If the country does not provide the additional information, or the DHS Secretary certifies that the country has a plan to provide that information, they will be included in a Presidential Proclamation prohibiting entry of certain categories of foreign nationals. The Secretary of State, Attorney General, or DHS Secretary can at any time recommend that additional countries be added to the list or taken off of the list. The new EO confirms that no visa issued before March 16, 2017, will be revoked because of the EO, and that any individual with a revoked or cancelled visa as only of the prior, January 27, 2017, EO is entitled to a travel document for travel and entry to the U.S.
Suspension of USRAP: The order suspends the USRAP for 120 days after March 16, 2017. During that time the USRAP application and adjudication process will be reviewed. The order does not apply to refugee applicants who were formally scheduled for travel by the Department of State before the March 16, 2017. The program will resume after the 120-day suspension period, for all countries except those which officials determine should remain on the prohibited country list. Exceptions can be made on a case-by-case basis if it is in the national interest and if the person would not pose a threat to the security or welfare of the United States. In addition, for the current fiscal year, the order reduces the number of refugees to be admitted to the U.S. by more than half of the initial goal set by President Obama – from 110,000 to 50,000 – dropping U.S refugee admissions to the lowest level in a decade. Having already admitted 37,328 refugees as of March 6, 2017, the United States would only admit 12,000 more refugees for the remainder of the fiscal year. The order also directs the Secretary of State to determine the extent to which state and local jurisdictions may have greater involvement in determining the placement or resettlement of refugees in their jurisdictions.
Requires In-Person Interviews for Most Nonimmigrant Visa Applicants: The new order immediately suspends the Visa Interview Waiver Program ("VIWP") and effectively mandates in-person interviews for all nonimmigrant visa applicants, unless an interview is not required by statute or otherwise excepted by the EO. The VIWP allowed consular officers to waive the interview requirement for applicants seeking to renew nonimmigrant visas within 12 months of expiration of the initial visa in the same classification. The VIWP has been used to waive the interview requirement only for travelers who have already been vetted and determined to be a low security risk and who have a demonstrated track record of stable employment and stable travel. The order calls for the Secretary of State to expand the Consular Fellows program, in an attempt to mitigate the EO’s effect on wait times. Until enough staff is hired, however, the EO will place enormous burdens on U.S. consulates and embassies - particularly high-volume posts - by increasing already extended interview wait times and processing times, wasting limited resources, and potentially decreasing the quality of consular interviews.
Requires Uniform Screening and Vetting Standards: The order directs the Secretary of State, Attorney General, DHS Secretary, and Director of National Intelligence to implement a program to identify individuals who seek to enter the U.S. on a fraudulent basis, who support terrorism, violent extremism, acts of violence toward any group of people within the U.S., or who present a risk of causing harm subsequent to their entry.
Requires the immediate implementation of Biometric Entry-Exit: The order directs agencies to expedite the completion and implementation of a biometric entry-exit system and includes reporting requirements. Since 1996, Congress has mandated that an automated entry-exit system be developed and implemented at all air, land, and sea ports of entry in an attempt to track those who overstay their visas. While DHS implemented biometric entry in 2006, a biometric exit system has been held up by numerous obstacles and logistical issues. The completion of an integrated biometric entry-exit system would require significant funding. The FY 2016 Consolidated Appropriations Act authorizes up to $1 billion for a biometric exit program, to be collected through fee surcharges over a period of up to 10 years. DHS has noted that a comprehensive entry-exit system at all ports of entry will require additional resources. (AILA Doc. No. 17030660.)
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