President Donald Trump’s revised travel ban is set to take effect tomorrow, March 16, 2017. This second Executive Order (EO) completely revokes and takes the place of the first order, which was widely derided and ultimately halted by the Ninth Circuit Court of Appeals in early February.
Signed on March 6th, the new EO is a more tightly-crafted document, which includes legal authority for the order and is far more specific about those included and excluded from the scope of the ban. These specifics are an attempt to avoid the court challenges that plagued the first EO.
Key features of the new order include a 90-day entry prohibition for non-green card holders from Iran, Libya, Somalia, Sudan, Syria, and Yemen. Iraq has been removed from the list. There is a strong possibility that other countries may be added to the banned list pending the outcome of a “worldwide review” to be implemented within 20 days of the order going into effect. Depending on the response to the review, and if countries refuse to provide requested data, the list of countries could grow.
Despite the more specific language in the new order, foreign nationals from the six impacted countries are again grappling with questions on what to expect during this period of uncertainty.
When does the travel ban begin and how long will it last?
The effective date is March 16, 2017 and will last at least 90 days while a review is made by government agencies. The ban is expected to be lifted in mid-June. However, if the specified countries do not provide requested information it’s possible that the ban will be imposed for an indefinite period. Numerous legal challenges have already been lodged with the courts, and may result in a lifting of the ban, or some portions of it, even earlier.
As a group, refugees are treated differently under the ban and have a longer suspension period of 120 days. The four-month period is meant to review the refugee program and determine what additional screening processes are needed. At the end of the 120-day period, refugee processing can only resume for countries who implement any additional procedures required of them by the U.S. government. Additional provisions reduce the number of refugees allowed admission in the current fiscal year from 110,000 to 50,000.
If I was already granted a visa, can I travel after March 16th?
Yes. Even if you are from the restricted six countries, the new order does not impose travel restrictions on those with a valid immigrant or non-immigrant visa as of March 16, 2017 or on those who held a valid visa for travel to the United States on January 27, 2017. Travelers should exercise caution, however, as single-entry visas or visas expiring during the course of a trip could pose a challenge to re-entry.
I have a green card, does this impact me?
No. The new order specifically exempts permanent residents from the travel ban. These individuals, so long as they are otherwise admissible, should not be barred from readmission to the US.
What if I’m a dual national?
You can travel and obtain visas at consular posts if you possess a valid passport from a non-designated country. For example, if you have both a Canadian and a Syrian passport, the non-designated country's passport should be presented for entry and visa processing purposes.
I’m currently in the U.S. Can I extend my visa or file for a Change of Status?
Yes. Nothing in the new order suggests that you cannot change or extend your status, assuming that you meet the typical requirements. That is, you must notbe in violation of the terms of your current visa and you must be maintaining status (with certain exceptions provided in the High Skilled Workers regulation recently released).
I have a pending I-485 application for Adjustment of Status. Will my case be denied or rejected?
Again, there is no indication in the new EO that such cases would be denied, refused at the mailroom, or suspended from processing. This topic is briefly addressed in a fact sheet provided in conjunction with the announcement and states, “USCIS will continue to adjudicate Applications for Naturalization (Form N-400) and Applications to Register Permanent Residence or Adjust Status (Form I-485) and grant citizenship consistent with existing practices.” While never mentioned by the White House, however, it would not be surprising to see a slowdown in the processing of such applications at USCIS while security processing procedures are implemented.
Will my visa be revoked?
It should not be. The White House’s FAQs state that “[v]isas will not be revoked solely as a result of the Executive Order,” but also notes that the U.S. Department of State “has broad authority under Section 221(i) of the Immigration and Nationality Act to revoke visas.” Those visas which were provisionally revoked solely on the basis of the first EO are now valid.
My visa is expiring and I have travel needs after March 16th. What can I expect?
Even if you are from one of the six listed countries, if you are in possession of a valid visa, you can continue to travel to and from the United States after the effective date. But, you should double check the expiration date on your visa stamp and the number of admissions that you are allowed. If your visa is expiring during the travel period, or you have already used a single-entry stamp, you will encounter obstacles. Such persons must obtain new valid visas to travel to the United States and these will not be available during the ban period, with certain exceptions. In such a case, consider avoiding international travel, if possible.
My visa appointment is scheduled at an Embassy after the effective date. What will happen now?
It is unclear at this time whether the Department of State intends to conduct such visa interviews. Those who are seeking a waiver of the travel ban, based on one of the waiver criteria, should plan to keep their scheduled appointment for the purpose of providing waiver evidence during the interview process.
Will my TPS application be processed?
Of the six countries included in the new EO, four of them are countries on the current Temporary Protected Status (TPS) designated list: Sudan, Syria, Somalia, and Yemen. Somalian and Yemeni nationals are still within the initial or re-registration period. Nothing in the new order or its supporting materials suggest that there will be a halt on the processing of TPS applications at service centers.
Are there any waivers available?
Yes, though it is not yet clear as to how the waiver process will be conducted. The revised EO and the White House FAQ’s provide examples of waiver situations, including cases where a 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 the effective date of this Order, seeks to reenter the United States to resume that activity, and the denial of reentry during the suspension period would impair that activity. Those who find themselves abroad after the effective date may be forced to apply for a waiver if circumstances warrant.
It’s clear in the new EO that the administration is attempting to avoid the constitutional issues that arise from restricting the travel of those who have been resident in the United States and hold an immigrant or non-immigrant visa. Yet, many questions remain unanswered. Ellis Porter will continue to monitor the situation and advise clients as we learn more about the waiver process, the travel ban implementation, and other details.