Clarity and Strength in Immigration Law

Trump Travel Ban, Take 2

In January, the Trump administration issued an executive order that many referred to as a “travel ban.” The travel ban applied to nationals of seven countries. Ultimately several federal courts put a temporary hold on the executive order, and as a result the Trump administration withdrew the executive order. The administration issued a new executive order this week to replace the previous executive order.  

The new travel ban is similar to the previous travel ban, but there are some key differences:

  • The revised travel ban is limited to six countries – Sudan, Syria, Iran, Libya, Somalia, and Yemen. Iraq has been removed from the list of affected countries.
  • The travel ban prohibits the issuance of new visas to foreign nationals who are outside the US and did not have a valid visa as of 5 pm EST on January 27, 2017. This means that if a person from these countries held a valid visa as of this time, they may still use the visa to apply for admission to the US; they should not be barred from entering the US on the basis of this executive order.
    • Keep in mind that just because a person holds a valid visa does not mean that their admission to the US in guaranteed. The CBP officer has discretion to deny entry to a nonimmigrant visa holder, and/or to restrict the duration of their visit. This is true for any foreign national, from any country, at any time.
  • Likewise, the prohibition does not apply to legal permanent residents who already have green cards.
  • There is a provision for a waiver. This means that even if a person is affected by this executive order, a consular officer or CBP officer can use their discretion on a case-by-case basis to authorize the issuance of a visa, or to allow the person to enter the US. The executive order indicates that the waiver may be granted for situations where the foreign national has previously been admitted to the US and needs to re-enter to resume long-term activity such as work or study, or if the foreign national wants to enter the US to visit or reside with a close family member who is a US citizen, LPR, or nonimmigrant and the denial of the entry would cause undue hardship, etc.
  • As with the previous executive order, the visa interview waiver program has been suspended indefinitely (note: this is not the same thing as the visa waiver program in which foreign nationals of certain countries can enter the US for a temporary visit without having to obtain a visa). There are certain limited exceptions for the suspension of this program, but in general foreign nationals should expect increased wait times for visas in light of the suspension of this program.

What Happens Next?

It is likely that this executive order will also be challenged in federal court, just as the previous one was. However, this executive order is more narrowly drafted, so the challenges may not be as successful. For now, foreign nationals who may be affected by this executive order should speak with a qualified immigration attorney before making plans to determine how, if at all, they may be affected.