Breaking: limited enforcement of revised travel ban in effect as of 8:00 pm EdT june 29, 2017
(June 30, 2017)
Who IS Subject to Suspension of Entry Under the Executive Order
- Nationals or citizens of Sudan, Syria, Iran, Libya, Somalia, and Yemen who are outside the US, do not have a valid visa, and do not have a bona fide relationship with a close family member or entity in the US. See below for definitions.
Who IS NOT Subject to Suspension of Entry Under the Executive Order
- Lawful permanent residents of the United States;
- Foreign nationals from Sudan, Syria, Iran, Libya, Somalia, and Yemen who have valid visas;
- What if your visa has expired?
- If you were present in the United States on June 26, 2017, the Executive Order will not apply to you when you apply for a subsequent visa.
- If you have a bona fide relationship with a close family member in the US, you can apply for a visa. A “close family” relationship includes: a parent (including parent-in-law), spouse, child, adult son or daughter, fiancé(e), son-in-law, daughter-in-law, and sibling, whether whole or half. This includes step relationships. However, “close family” does not include grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-law and sisters-in-law and any other “extended” family members.
- If you have a bona fide relationship with an entity in the US, you can apply for a visa. A bona fide relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading the Executive Order.
- What if your visa has expired?
- Foreign nationals from Sudan, Syria, Iran, Libya, Somalia, and Yemen who have Advance Parole
- Any dual national of a designated country when traveling on a passport issued by a non-designated country;
- Any foreign national traveling on designated diplomatic visas;
- Individuals who have already been granted asylum or refugee status in the United States, or any individual who has been granted withholding of removal, or protection under the Convention Against Torture;
- First-time refugees whose travel was already formally scheduled by the Department of State;
- New refugee applicants who can demonstrate
- A bona fide relationship with a close family member in the US. See above.
- A bona fide relationship with an entity in the US, which may include a refugee resettlement agency. See above.
Additional Updates: The plaintiffs in Hawai'i v. Trump have asked the District Court to clarify the scope of the court's injunction barring implementation of the Executive Order (as modified by the Supreme Court). The plaintiffs assert that the government is applying the definition of a bona fide relationship too narrowly in light of the Supreme Court decision.
Supreme Court Permits Limited Enforcement of Trump's Revised Travel Ban; Will Hear Arguments in October
June 26, 2017. Today the Supreme Court agreed to review rulings by two lower courts blocking the implementation of President Donald Trump’s March 6 executive order, popularly known as the “travel ban.” The justices also granted the Trump administration’s request to allow the ban to go into effect ONLY for would-be travelers who DO NOT already have some connection to the United States. Those with a connection are still protected by the injunctions.
Background: Citing national-security concerns, the Executive Order imposed a freeze on new visas for individuals from six Muslim-majority countries (Iran, Libya, Somalia, Sudan, Syria and Yemen). Enforcement of the Executive Order was halted by decisions from the Districts of Maryland and Hawai'i, which were upheld last month by the Fourth and Ninth Circuit Courts of Appeals, respectively. The Trump Administration sought review by the US Supreme Court, and requested that the Court reinstate the travel ban while the case was under consideration.
Today's Decision: The court partially lifted the injunctions with respect to individuals from the six countries who do not have a bona fide connection to a US family member or US entity. Importantly, the court provided the following examples of individuals WITH bona fide connections to the US:
- a foreign national with a close familial relationship seeking to enter the US to live with or visit a family member;
- a formal, documented relationship with a US entity made in the ordinary course of business, e.g.,
- a student admitted to a US college or university;
- a worker who accepted an offer of employment from a US company; or
- a lecturer invited to address a US audience;
- a refugee who can credibly claim a bona fide relationship with a person or entity in the US.
The lower court injunctions blocking enforcement of the travel ban would still protect individuals in the above categories.
In other words, the ban only applies to people living overseas “who have no connection to the United States at all.” When those people are unable to come to the US, the court reasoned, their constitutional rights are not violated – because they have no right to come to the US – and their exclusion from the country does not harm anyone in the US.
Three Justices dissented from the unsigned opinion – Justices Thomas, Alito, and Gorsuch – stating that they would have permitted the travel ban to be fully enforced while the case is pending before the Supreme Court, even for individuals similarly situated to the plaintiffs.
Approximately 72 hours from the release of the decision (Thursday, June 29, 2017), Department of Homeland Security (DHS) officials, consular officers, and others will be authorized to ban refugees and travelers from the six affected countries who cannot show a bona fide relationship with a U.S.-based family member or entity. Refugees and people with immigrant and nonimmigrant visas will not be banned if they can show a bona fide relationship with a family member or entity in the United States. For individuals, a "close familial relationship" is required. Travelers may not seek to establish a relationship with an entity solely for the purpose of evading the ban.
The Supreme Court also formally lifted the injunction on the government's study that could lead, under section 2(e) of the Executive Order, to an indefinite ban on entry by nationals of countries that do not provide the US government with sufficient information on their citizens who are applying for US visas or immigration benefits.
If you or any of your employees have questions, please contact us.
President Signs New Executive Order; Courts Halt Implementation
NINTH CIRCUIT COURT OF APPEALS UPHOLDS STAY OF TRAVEL BAN AND REFUGEE BAN (JUNE 12, 2017)
The Ninth Circuit on Monday affirmed in substantial part the district court's issuance of a preliminary injunction blocking implementation of Sections 2 and 6 of Executive Order 13780, which suspended entry of nationals from six Muslim-majority countries and suspended the US Refugee Admissions Program. The Court of Appeals concluded that the plaintiffs--individuals and the State of Hawai'i--demonstrated a likelihood of success on the merits that the Revised Executive Order contravenes the Immigration and Nationality Act by exceeding the President's statutory authority, discriminating on the basis of nationality, and disregarding procedures for setting annual admissions of refugees. The court did not address the plaintiffs' other argument that the Executive Order violates the First Amendment's bar against religious discrimination.
The court did conclude that the district court's injunction was over-broad to the extent it barred the government's internal review of consular vetting procedures, and lifted the injunction as to those activities. The court also agreed with the government that the injunction was inappropriate as applied to President Trump himself, and therefore lifted the injunction as to the President.
GOVERNMENT SEEKS SUPREME COURT REVIEW OF THE FOURTH CIRCUIT'S DECISION AFFIRMING STAY OF THE TRAVEL BAN (June 1, 2017)
The government filed a petition for certiorari seeking Supreme Court review of the Fourth Circuit Court of Appeals' decision affirming a stay of Section 2(c) of Executive Order 13780, which suspended entry to the US of nationals of six majority-Muslim countries. The government also sought a stay of the US District Court of Hawai'i decision staying the travel ban or, in the alternative, pre-decision review by the Supreme Court.
FOURTH CIRCUIT COURT OF APPEALS UPHOLDS STAY OF TRAVEL BAN (May 25, 2017)
The Fourth Circuit on Thursday affirmed in substantial part the district court's issuance of a nationwide preliminary injunction as to Section 2(c) of Executive Order 13780, which suspended the entry of nationals of six Muslim-majority countries for 90 days. The court agreed with the government that the district court erred in issuing an injunction against President Trump himself, and therefore lifted the injunction as to the President only.
A majority of a full sitting of the Court held that the groups bringing the case credibly alleged that the order's professed national security aim was given in “bad faith,” as a front for a religious purpose, and that although President Trump had broad power to deny entry into the United States, his executive order “stands to cause irreparable harm to individuals across the nation.”
The ruling is the first appellate court ruling on the second executive order, which was signed March 6. The US Court of Appeals for the Ninth Circuit also heard arguments earlier this month over a broader injunction against the executive order from the district court in Hawaii, but has yet to release its decision.
Attorney General Sessions has indicated that the Department of Justice will petition the US Supreme Court for review.
NINTH CIRCUIT COURT OF APPEALS EXPEDITES TRAVEL BAN APPEAL, HEARING EXPECTED IN MAY (APRIL 4, 2017)
The Ninth Circuit on Monday agreed to hear the President’s appeal of a Hawai'i federal judge's preliminary injunction of his controversial travel ban on an expedited basis, setting the stage for oral arguments for a to-be-determined date in May.
FOURTH CIRCUIT COURT OF APPEALS EXPEDITES TRAVEL BAN CASE, SETS MAY 8 HEARING (MAR. 24. 2017)
The US Court of Appeals for the Fourth Circuit agreed Thursday to expedite the government's appeal of a court order halting implementation of the travel ban portion of the President’s New Executive Order, setting oral arguments in the case for May 8 at the court in Richmond.
During oral arguments surrounding the first order, the Ninth Circuit attracted a large audience by live streaming the hearing. A representative in the Fourth Circuit’s Clerk’s Office said the court does not plan to livestream the May 8 arguments at this time, but the court does provide audio recordings of arguments.
A federal judge in Hawaii, Derrick K. Watson, also issued an injunction against the order, which blocked the travel restrictions as well as other provisions, including the 120-day suspension of the refugee program. The government has yet to appeal that order.
FEDERAL JUDGE IN HAWAI'I ISSUES WORLDWIDE RESTRAINING ORDER AGAINST KEY PARTS OF THE NEW EXECUTIVE ORDER HOURS BEFORE IT WAS SET TO TAKE EFFECT (MAR. 15, 2017)
US District Court Judge Derrick issued a world-wide restraining order blocking two core provisions of the New Executive Order: a 90-day halt in issuance of visas to citizens of Iran, Libya, Somalia, Sudan, Syria, and Yemen, and a 120-day halt on refugee admissions from all countries. The Court's order applies "in all places," including the United States, at all US borders and ports of entry, and in the issuance of visas. In a 43-page opinion, the Court ruled that the state of Hawaii and a local Muslim leader had "a strong likelihood of success on their claim" that the President's order intentionally targets Muslims and therefore violates the Constitution's guarantee against establishment of religion.
FEDERAL JUDGE IN MARYLAND HALTS IMPLEMENTATION OF THE TRAVEL BAN PORTION OF THE EXECUTIVE ORDER (MAR. 16, 2017)
Hours after a federal judge in Hawai'i issued a temporary restraining order against the President's New Executive Order, US District Court Judge Theodore Chuang issued a nationwide preliminary injunction prohibiting the enforcement of the 90-day ban against travelers from Iran, Libya, Somalia, Sudan, Syria and Yemen. Judge Chuang's order denied the plaintiffs' request to block other parts of the March 6 Executive Order, including the temporary ban on refugees.
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On Monday, March 6, 2017, President Trump revoked the January 27, 2017 Executive Order 13769 imposing a travel and refugee ban and issued a replacement order. The New Executive Order will be effective as of 12:01 AM EDT on March 16, 2017
TRAVELERS FROM IRAN, LIBYA, SOMALIA, SUDAN, SYRIA, AND YEMEN
Section 2 of the New Order suspends entry to the United States as of 12:01 AM EDT on March 16, 2017 for nationals or citizens of Iran, Libya, Somalia, Sudan, Syria, and Yemen who:
- Are outside the United States on March 16, 2017;
- Did not have a valid visa at 5:00 pm EST on January 27, 2017; and
- Do not have a valid visa on March 16, 2017.
The suspension of entry DOES NOT APPLY TO
- Lawful permanent residents of the United States (“green card” holders);
- Any foreign national who has a document OTHER than a visa, valid on March 16, 2017 (or issued thereafter), that permits him or her to travel to the United States and seek entry or admission (e.g., an Advance Parole document);
- Any dual national of a designated country when traveling on a passport issued by a non-designated country;
- Any foreign national traveling on designated diplomatic visas; OR
- Any foreign national who has been granted asylum, any refugee who has already been admitted to the United States, or any individual who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture.
A consular officer, Commissioner of US Customs & Border Protection (CBP) (or the Commissioner’s delegee, may, in his or her discretion, decide on a case-by-case basis to authorize the issuance of a visa or permit entry of a foreign national subject to the ban if the foreign national demonstrates that denying entry during the suspension would:
- Cause undue hardship;
- His or her entry would not pose a threat to national security; and
- His or her entry would be in the national interest.
Examples of individuals for whom a waiver may be appropriate:
- the foreign national has previously been admitted to the United States for a continuous period of work, study, or other long-term activity, is outside the United States on March 16, 2017, seeks to reenter the United States to resume that activity, and the denial of reentry during the suspension period would impair that activity.
- the foreign national has previously established significant contacts with the United States but is outside the United States on the effective date of this order for work, study, or other lawful activity.
- the foreign national seeks to enter the United States for significant business or professional obligations and the denial of entry during the suspension period would impair those obligations (e.g., to receive a significant award, or attend a prestigious conference).
- the foreign national seeks to enter the United States to visit or reside with a close family member (e.g., a spouse, child, or parent) who is a United States citizen, lawful permanent resident, or alien lawfully admitted on a valid nonimmigrant visa, and the denial of entry during the suspension period would cause undue hardship.
- the foreign national is traveling as a United States Government-sponsored exchange visitor.
Any individual whose visa was marked revoked or marked canceled as a result of Executive Order 13769 shall be entitled to a travel document confirming that the individual is permitted to travel to the United States and seek entry. Any prior cancellation or revocation of a visa that was solely pursuant to Executive Order 13769 shall not be the basis of inadmissibility for any future determination about entry or admissibility.
Iraqis seeking entry to the United States, while not subject to the ban, should be prepared to experience delays in visa issuance. The New Executive Order requires additional screening by the Department of Defense for such applicants, and this make cause delays.
As before, the New Executive Order suspends entry of refugees into the US and decisions on applications for refugee status under the US Refugee Admissions Program (USRAP) for a period of 120 days. The suspension DOES NOT APPLY to refugee applicants who, before March 16, 2017, have been formally scheduled for transit by the Department of State. Refugee admissions and decisions on applications for refugee status will resume 120 days from the effective date (e.g., July 14, 2017) ONLY for stateless persons, and nationals of countries for which the Secretaries of State, Homeland Security and the Director of National Intelligence have determined have procedures implemented adequate to ensure the security of the US.
The New Executive Order limits the entry of refugees in FY 2017 to no more than 50,000.
Waivers: The Secretaries of State and Homeland Security may jointly determine to admit refugees on a case-by-case basis where entry is in the national interest and does not pose a threat to the security or welfare of the US.
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On January 27, 2017, President Donald J. Trump signed an Executive Order relating to visa issuance, screening procedures, and refugees, titled "Protecting the Nation From Foreign Terrorist Entry Into the United States."
temporary restraining order (tro) blocks implementation of executive order; us court of appeals denies government's request to reinstate the travel ban while the case is pending in the district court (updated feb. 10, 2017)
On Friday, February 3, 2017, the US District Court in the Western District of Washington issued a temporary restraining order (TRO) suspending enforcement of the Executive Order nationwide. In response, the Department of Homeland Security (DHS) and Department of State (DOS) both issued statements indicating that they would return to the policies and procedures in place prior to the Executive Order. DOS stated that provisionally revoked visas were valid once more, and Customs & Border Protection announced procedures for travelers whose visas had been physically marked in the initial roll-out to be admitted.
The Government filed an appeal to the US Court of Appeals for the Ninth Circuit the following day (February 4), and both sides submitted briefs and conducted oral argument on Tuesday, February 7.
On Thursday, February 9, the Court of Appeals denied the Government's request to lift the TRO and re-institute the Executive Order's travel ban, concluding that the Government had not demonstrated a likelihood of success on the merits of its appeal, nor that the failure to lift the TRO would cause irreparably injury to the Government. Therefore, until further action by a court, the order barring implementation of the travel and refugee ban remains in place, and all individuals may apply for visas and admission to the United States without regard to nationality.
The case now returns to the US District Court for briefing and argument on the merits of the States' request for a preliminary injunction blocking implementation of the Executive Order. All legal briefs are due to be filed by Friday, February 17, and a hearing will likely be scheduled shortly thereafter.
uscis will adjudicate petitions & applications filed by or on behalf of individuals from the designated countries (updated feb. 3, 2017)
We have received reports that guidance may have gone out to the field indicating that Section 3(c) of the Executive Order does not affect USCIS adjudication of applications and petitions filed for or on behalf of individuals in the United States regardless of their country of nationality, and that adjudications at field offices have resumed. We are awaiting official confirmation from USCIS.
No Current Plans to Expand Travel Ban Beyond Current Countries (Updated Feb. 2, 2017)
In response to rumors of plans to expand the travel ban to other countries, the Department of State (DOS) informed the American Immigration Lawyers Association (AILA) that there is no addendum, annex, or amendment now being worked on to expand visa revocations or the travel ban to countries other than those currently implicated in the Executive Order. This includes Colombia and Venezuela which have been widely rumored to be under consideration. DOS confirmed that there is no information that supports such a rumor and asked that AILA members help end the spread of this false information.
entry to the us by nonimmigrants and immigrant visa holders bearing passports from iran, iraq, libya, somalia, sudan, syria, and yemen is barred; US citizens and lawful permanent residents are not subject.
Section 3 of the Executive Order suspends the immigrant and nonimmigrant entry of nationals from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen for 90 days from the date of the order (i.e., April 27, 2017); this ban has the potential to be permanent.
The Executive Order applies to nearly all travelers, except U.S. citizens and Lawful Permanent Residents, traveling on passports from Iraq, Syria, Sudan, Iran, Somalia, Libya, and Yemen who are applying for entry to the United States at any port of entry—air, land or sea.
- On February 1, 2017, White House Counsel issued "Authoritative Guidance" on the Executive Order clarifying that the Order does not apply to Lawful Permanent Residents (those holding a green card--Form I-551--or a temporary I-551 stamp).
- The Department of Homeland Security (DHS) and US Customs & Border Protection (CBP) have stated that dual nationals will be assessed according to the travel document they present. That is, if a citizen of Iran and Canada presents his or her Canadian passport and visa at a port of entry, he or she will be processed based on Canadian nationality.
- Landed immigrants of Canada (not including refugees) who hold passports of a restricted country can apply for admission to the US, if the individual presents that passport with a valid immigrant or nonimmigrant visa and proof of their landed immigrant status, and only if the travel both originates in Canada and is through a land border or Preclearance location.
All individuals entering the US should be prepared to experience delays and questioning in secondary inspection.
- Lawful Permanent Residents SHOULD NOT sign Form I-407, Abandonment of LPR Status. Returning LPRs should not automatically surrender their green cards if asked to do so. Form I-407 must be signed voluntarily. An LPR who refuses to sign Form I-407 will be issued a Notice to Appear (NTA) so that an immigration judge can determine whether they have lost their LPR status. If you find yourself in this situation, contact us.
- All international travelers arriving to the US are subject to CBP inspection. This inspection may include electronic devices such as computers, disks, drives, tapes, mobile phones and other communication devices, cameras, music and other media players and any other electronic or digital devices. Be mindful of your social media activity.
nonimmigrant & immigrant visas for nationals of designated countries revoked; changes to visa application process
The US Department of State (DOS) provisionally revoked all valid nonimmigrant and immigrant visas of nationals of the designated countries as of January 27, 2017, with the exception of the following classifications: A-1, A-2, G-1, G-2, G-3, G-4, NATO, C-2, or certain diplomatic visas.
- Visa holders from the designated countries will not be permitted to board flights or enter the US. US Consular Offices are cancelling scheduled visa interviews (both immigrant and nonimmigrant) and issuance of visas to individuals from the designated countries. You will not be permitted to enter the Consulate.
- Consulates are allowed 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 a restricted country.
- Landed immigrants of Canada (not including refugees) who hold passports of a restricted country can apply for an immigrant or nonimmigrant visa to the US, if the individual presents that passport and proof of landed immigrant status to a consular officer. These applications shall be made at a U.S. consular section in Canada.
- Expect the roll-out of an enhanced screening program for visa applicants which may delay visa issuance.
Persons from the designated countries, who are in the US in a nonimmigrant status with a valid I-94 record, are allowed to remain in the US. However, if a person from a designated country does need to travel internationally, then a new US visa will need to be obtained to return; no new nonimmigrant visa applications will be approved for persons from the designated countries until after the 90 day period, at the earliest.
refrain from non-essential international travel and contact an attorney.
We are advising clients who might be affected by the Executive Order, including passport holders, citizens, and nationals of the designated countries, to REFRAIN from traveling outside of the United States for the foreseeable future. In addition, you should contact the team at Goldblum & Pollins for appropriate guidance BEFORE planning any future travel outside the United States.
legal challenges to the executive order
There were several immediate legal challenges to the Order in the US District Courts; five courts issued orders temporarily staying the implementation of the Order with respect to foreign nationals who were detained upon arrival at US airports in the initial day of the Order (the "Airport Cases"). Hearings on these cases are scheduled in the next two weeks, but the cases may be mooted as individuals detained at airports are released. On January 30, 2017, a class action complaint was filed in the US District Court in Washington State on behalf of US Citizens and Lawful Permanent Residents (LPRs), and their family members who were prevented from completing the immigrant visa application process, or from entering the US with valid immigrant visas. This is likely to be the first substantive challenge to the Order. Currently, there are approximately thirteen legal challenges to the Executive Order.
Contact us for more information or with questions. We will continue to provide updates as the situation develops.
What you can do now: Contact your Senators and Representatives in Congress and let them know how this impacts you, your family, and your work.