United States: Executive Order Protecting the Nation from Foreign Terrorist Entry into the United States
On January 27, 2017, President Trump signed an Executive Order entitled “Protecting the Nation from Foreign Terrorist Entry Into the United States.” This Order has an impact on US corporate immigration in 3 main ways. Firstly, it suspends the travel of nonimmigrants and immigrants from Iran, Sudan, Syria, Libya, Somalia, Yemen, and Iraq into the US for a period of at least 90 days. Secondly, it requests the implementation of uniform screening standards for all immigration programs, including suspending the Visa Interview Waiver Program. Thirdly, it requests the expedited completion of the biometric entry-exit tracking system.
Rationale for the Order
The Executive Order was issued out of concern that the visa issuance process is not sufficiently robust to catch those who may be a security threat to Americans. The President has requested that the Secretary of Homeland Security immediately conduct a review to determine what information countries should provide to the US so that US government officials can make a proper determination as to whether or not a visa applicant, or applicant for admission to the U.S., poses a threat to national security. The travel suspension is placed to reduce the investigative burdens during the review period from both a resourcing perspective, as well as from a risk perspective. The Executive Order aims to ensure proper security measures are in place before more immigrants and nonimmigrants from certain countries enter the US.
Suspension of entry into the US
The Order specifically states that the entry into the US of people “from” certain countries is detrimental to the interests of the US and suspends the entry into the US of such persons, whether as immigrants or nonimmigrants, for 90 days from the date of the Order. There is an exception for those who are traveling on certain official business, utilizing diplomatic, NATO, UN, or International Organizations visas.
Since the Order uses the term “from,” it is unclear exactly who is impacted by the Order and as of this publication, varying interpretations regarding the precise impact on dual citizens, as well as US green card holders, have been released. Until further clarification is provided, it is prudent for a broad interpretation of the term “from” to be utilized. As such, those who are citizens, nationals, dual nationals, and/or born in those seven countries should consider themselves impacted by the Order. This would include, for example, a person who is both a citizen of Iran and another country, even if utilizing the other country passport for entry into the US, as well as a person who was born in Iran (who has not held an Iranian passport for several years) who is seeking entry into the US on another country’s passport.
The Order specifically impacts “immigrants and nonimmigrants.” As such, anyone from one of the seven countries who holds nonimmigrant (such as B-1/B-2, H-1B, L-1, and TN) status or immigrant (permanent resident / green card) status is potentially affected by the Order. The Order impacts those who are currently outside of the US who may be banned from entering the US, as well as those who are currently in the US and were seeking to travel outside the US.
The Order does allow for the Secretaries of State and Homeland Security to issue visas or other immigration benefits to those from the seven countries on a case-by-case basis. It will be important to see whether certain populations, such as those with dual nationality who are green card holders, will be exempted from the ban. Over the next few days, more clarity will likely be provided by the Department of State and Department of Homeland Security as to how those departments will be implementing the Executive Order.
Implementation of uniform screening standards
The Order further discusses the implementation of uniform screening standards, across governmental agencies including the FBI, which will be able to better identify possible fraud within the immigration context. This could have various impacts on US corporate immigration including changes in USCIS forms and an increase in in-person interviews by both USCIS and the Department of State. The Order also requests the Secretary of State to immediately suspend the Visa Interview Waiver Program, thus requiring that all nonimmigrant visa applicants undergo in-person interviews. This impacts those planning to utilize the “drop box” method of visa application, available for certain nonimmigrant applicants at certain US Consular Posts. For example, certain Indian nationals who were previously able to renew their H-1B visas without an interview, will likely now have to attend an in-person interview at a US Consular Post.
Immigrant and nonimmigrant visa applicants, as a result of the Order, should be prepared for increased visa adjudication wait times and should plan their travel accordingly.
Expedited completion of the biometric entry-exit tracking system
The Order affects “all travelers” to the United States since it requests the completion and implementation of a biometric entry-exit tracking system. Although the Order does not define “all travelers,” it is possible that all nonimmigrants and immigrants may be required to undergo additional security screening, such as fingerprint scanning, when entering the US. The Department of Homeland Security is charged with completing and implementing this system.
Impact and Recommendations
Companies are advised to review their current employee population, specifically those with US immigrant or non-immigrant status, and those with upcoming travel plans.
Until further clarification is provided, it is recommended that those who are from any of the seven countries who are currently in the US in either a nonimmigrant or immigrant status NOT depart the US since they may not be able to re-enter the US for 90 days or longer. For those who may have an upcoming nonimmigrant status expiration (such as an expiring I-94), it is recommended that they discuss their particular situation with an immigration attorney. Also, for those who are currently outside of the US from one of those seven countries who were seeking to enter the US in a nonimmigrant or immigrant status, they should be prepared to make alternate plans should they be denied entry into the US.
It is important to note that the situation is in flux and may change at any time, given recent court decisions to stay parts of the Order as well as messages delivered to various governments worldwide. We will be certain to provide updates, clarification, and guidance as this matter develops. Do note, however, that this practice alert is not legal advice. Attorneys and clients should discuss and make decisions based on their individual circumstances.
For further details regarding the Executive Order, or any other immigration matters, please contact a member of our team.