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On January 27, 2017, President Donald Trump signed his third immigration-related Executive Order, entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.”
Although the title of the Executive Order suggests that it will protect our nation, the contents of the Executive Order are likely to jeopardize the safety of Americans and bona fide refugees all over the world, rather than actually protect the homeland.
Since the issuance of the order on Friday evening, January 27, 2017, we have seen chaos and confusion at our Ports of Entry around the United States. Department of Homeland Security (DHS) and Customs and Border Protection (CBP) officers appeared to be caught off-guard and unsure as to how or whether to implement the Executive Order.
As discussed below, the Executive Order temporarily bars the entry of all refugees and individuals from Syria, Sudan, Somalia, Libya, Yemen, Iran and Iraq into the United States.
Many people subject to the bans, including refugees approved for admission to the United States and by the U.S. State Department and United Nations, immigrant and nonimmigrant scientists, doctors, the elderly, women and children, were already in-flight and then detained at Ports of Entry once they arrived in the United States.
Already, Federal District Courts in New York, Washington, Virginia, and Massachusetts have issued Temporary Restraining Orders (TROs), temporarily blocking portions of the Executive Order from taking effect and preventing CBP from detaining lawful permanent residents and other individuals arriving on valid immigration documents at U.S. Ports of Entry.
It is yet to be seen whether the Executive Orders will be upheld by the courts as an authorized exercise of power by the President. The legality of the Executive Order remains unsettled. However, foreign nationals in the United States who are foreign nationals of Syria, Somalia, Sudan, Iran, Iraq, Libya or Yemen are strongly recommended to defer any non-essential travel outside of the United States.
Moreover, in light of the fact that the Executive Order could be extended to additional countries at any time, foreign nationals living in the United States should consider deferring non-essential travel outside of the United States as well.
The Executive Order directs the following:
1) Ban on Entry of Nationals from Syria, Sudan, Somalia, Libya, Yemen, Iran and Iraq. The Order bans the admission of immigrants and nonimmigrants from Syria, Sudan, Somalia, Libya, Yemen, Iran and Iraq for at least 90 days. The Order leaves open whether additional countries could be added to the list of banned countries. The Order also calls for the exclusion of people who “would place violent ideologies over American law,” or “who engage in acts of bigotry or hatred (including ‘honor killings, other forms of violence against women, or the persecution of those who practice religions different from their own).”
Returning Lawful Permanent Residents
Although the Administration and DHS initially stated that Lawful Permanent Residents (“Green Card” holders) returning from trips abroad would also be subject the ban. However, they have reversed course, and stated that lawful permanent residents should be admitted to the United states regardless of whether they are from one of the seven countries listed.
However, there are reports of CBP officials attempting to coerce returning LPRs into signing Form I-407, agreeing to relinquish (give up/abandon) their lawful permanent residency in the United States.
A returning lawful permanent resident cannot be forced into giving up their LPR status or signing a Form I-407. We strongly recommend that any returning LPR refuse to sign an I-407 until they discuss the legal implications in person with an experienced immigration attorney.
Application of ban to pending applications in USA?
Although the Executive Order bans the “entry” (a term of art in immigration law, referring to the actual entry into the United States from abroad) of nationals of these seven countries, at the time of this writing, the DHS appears to have suspended the final adjudication of petitions and applications of individuals from the seven countries, including applications for lawful permanent residence and naturalization.
Suspension of Visa Processing and Cancellation of Visa Interviews at U.S. Consular Posts Abroad
The U.S. State Department has already advised foreign nationals applying for immigrant or nonimmigrant visas to the United States that their visa interviews have been cancelled as a result of the Executive Order.
Nationals Denied Boarding of Airline Flights Abroad
Airlines at international airports abroad have been instructed to deny boarding to individuals from the seven countries. Therefore, nationals of Syria, Sudan, Somalia, Libya, Iran, Iraq and Yemen with plans to travel to the United States, should monitor this situation carefully and prepare to be denied boarding at airports abroad.
Individuals diplomatic, NATO or C-2 (United Nations-related) and G visas are not subject to the ban.
2) Suspension of the U.S. Refugee Admissions Program (USRAP). The Order suspends the admission of all refugees to the United States for at least 120 days. While exceptions exist on a “case-by-case” basis, the order effectively stops the entry of all refugees into the United States for at least four months.
The Order also reduces the number of refugee admissions for the current Fiscal Year from 110,000 to 50,000. This is the lowest number of refugees to the United States in a decade, at a time when people displaced from their homes globally is at an all-time high.
3) Ban on Syrian Refugees. The Order halts the admission of refugees from Syria, a country ravaged by a brutal civil war since 2011, indefinitely.
4) Requires in-person interviews for most nonimmigrant visa applicants. The Executive Order stops the Visa Interview Waiver Program (VIWP) and requires that all individuals seeking a nonimmigrant visa at a U.S. Consulate abroad attend an interview in order to receive the visa.
The current VIWP allows consular officers to waive the visa interview for nonimmigrant visa applicants who are renewing a nonimmigrant visa within 12 months of the expiration of the prior visa in the same classification. With the suspension of the VIWP, we can expect an increase in visa appointment wait times and delays in visa issuance from our consular posts abroad.
5) Screening for all Immigration Benefits: The Order directs the DHS Secretary to develop screening for fraud and detect whether individuals applying for immigration benefits intend to do harm to the country. It also directs the agencies to develop a process to evaluate a person’s likelihood of becoming a “positively contributing member of society” and “ability to make contributions in the national interest.”
The DHS already has in place a rigorous screening for all immigration benefits, it is unclear how an individual’s likelihood of becoming a positively contributing member of society or his or her ability to make contributions in the national interest can be assessed in any objective manner. Further, adding additional layers of vetting for immigration benefits will add to the lengthy backlogs in processing of immigration benefits that currently exist.
6) Biometric-Entry Exit: The Order directs the DHS Secretary to expedite the completion and implementation of a Biometrics Entry/Exit system. DHS implemented this system in 2006, but it has been delayed in implementation due to logistical and technical difficulties.
For more information on the Trump’s Executive Orders or other immigration matters, please contact us at Kolko & Associates, P.C.
