While daily governmental guidance for affected individuals, in the United States and abroad, has followed the signing of Executive Order “Protecting the Nation from Foreign Terrorist Entry into the United States” on January 27, 2017, reports of inconsistent treatment of individuals abound. The following illustrates some of the confusion regarding individuals “from” Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen.
New Temporary Restraining Order
In the evening on January 31, the U.S. District Court in Los Angeles issued a temporary restraining order enjoining certain parts of the EO. Judge Andre Birotte, Jr.’s order requires the government to allow people to enter the United States who have valid immigrant visas — i.e., individuals who have been approved for legal permanent residence and are entering the U.S. for the first time in their new status on immigrant visas. The TRO appears to apply nationally. The Department of Homeland Security’s interpretation of the ruling is expected.
Green Card Holders
On February 1, the White House Counsel issued “authoritative guidance” stating that Green Card holders will no longer be subject to the Executive Order. They will no longer need the Secretary of the Department of Homeland Security’s “categorical waiver,” according to that announcement. This guidance likely was issued because of continued reports of intense scrutiny at secondary inspection and even reports of individuals being asked to surrender their Green Cards. We await clarification on whether this is meant to apply to individuals covered in Judge Birotte’s order as well.
Visa Interview Waiver Program
Based upon statutory exceptions in the EO, the Visa Office clarified that certain visa interview waivers would remain available to applicants under the age of 14 or over the age of 79 and to persons whose visas expired within the past 12 months applying in the same category. Nevertheless, anyone applying for a visa should check with the relevant Consulate regarding the applicability of any visa interview waiver program.
DHS has stated that dual nationals “from” the seven countries were subject to the EO’s travel ban, but that Customs and Border Patrol would process people “based on how they present themselves at primary inspection.” Persons presenting their “non-restricted country” passport will be treated as citizens of the non-restricted country. U.S. citizens who are dual nationals should not be subject to the restrictions. Reports of dual nationals subjected to inconsistent treatment by CBP continue.
U.S. Citizenship and Immigration Services may continue to process visa applications and even to conduct interviews for individuals “from” the seven countries, but final decisions will be deferred, according to reports. There may be an exception for citizenship applications. However, the Department of State announced the National Visa Center has cancelled all scheduled immigrant visa interviews for February, whether family- or employment-based, including fiancé visa interviews.
The situation is in flux and is subject to further changes. Individuals from the seven countries who are in the United States and are planning to travel outside the country should consult an attorney before leaving.
Jackson Lewis attorneys will provide further updates. Please contact your Jackson Lewis attorney with any questions.
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