Dated: March 21, 2017- As expected, President Trump issued a second Executive Order on March 6, 2017 (Travel Ban 2.0) which was slated to become effective on March 16, 2017. Similar to the first Travel Ban, issued January 27, 2017 in Seattle, however, this second Executive Order has been temporarily restrained, this time by a federal judge in Hawaii. The Seattle case, for procedural reasons, remains on hold.
Please note that CIR is providing this FAQ for informational purposes only. It does not constitute legal advice and is not a substitute for consulting with an attorney. This information is current as of March 20, 2017.
In light of President Trump’s two Executive Orders, dated January 27, 2017 and March 6, 2017, what advice would you give to foreign nationals who are interested in traveling abroad?
Nationals of the now 6 designated countries (Iran, Libya, Somalia, Sudan, Syria and Yemen) should avoid exiting the U.S. at this time. While the new Executive Order revokes the prior Executive Order and existing visas issued before March 16, 2017 will remain valid, the unpredictable nature of this situation suggests that travel outside the U.S. should be avoided.
For nationals of other countries, the new Executive Order has not dispelled the state of uncertainty around travel. The Order leaves open the option to expand the ban, and even re-include Iraq, if leaders of countries fail to comply with the requirement of increased intelligence sharing. In light of this unprecedented level of uncertainty, our advice is to avoid non-essential travel abroad until the situation stabilizes. If it is not possible to avoid travel, consult with an immigration attorney before exiting the U.S.
I am not from one of the 6 designated countries and I have a valid travel visa in my passport. Can I travel abroad?
If you are not from one of the now 6 designated countries and you have a valid visa to use for reentry, it may be possible to travel with a higher degree of assurance, especially as existing visas are not being revoked under the new Order. However, while the list of designated countries has contracted by one at this juncture, the terms of the new Order allow for expansion of the list for failure of a country or countries to comply. Bear in mind that this expansion can occur at any time and without warning. For nationals of newly added countries who are abroad, reentry to the U.S., even with a visa, may be delayed indefinitely.
I am not from one of the 6 designated countries and I want to travel abroad, but I do not have a visa stamp. Is it safe to travel?
At this juncture, we strongly recommend against travel abroad for any foreign national who does not have a valid visa. It is unclear what effect the new Order will have on the functioning of embassies and consulates around the world. The new Order mandates the Secretary of Homeland Security, in consultation with the Secretary of State and Director of National Intelligence, to conduct a worldwide review of foreign governments within 20 days of the effective date of the Order. This review is to assess whether sufficient information is being provided to the U.S. by each foreign government to assure that nationals from each country are who they claim to be and do not pose a threat to the safety or security of the public. Foreign governments must provide requested information within 50 days of notification by the Secretary of State. This information gathering process could divert significant consular resources that would otherwise be used to interview visa applicants and issue visa stamps. Based upon this current uncertainty, we recommend refraining from non-essential travel for the time being, particularly for foreign nationals without visa stamps in their passports.
How does the stay impact the new Executive Order?
The provisions of the Executive Order cannot go into effect until the case is heard in federal court. In a similar case challenging the new Executive Order brought in Maryland, a federal judge has also specifically blocked the provision, carried over from the prior Executive Order, for a 90-day suspension of visa processing for citizens of the 6 listed, Muslim-majority, countries.
I am a dual citizen of one of the 6 countries and Canada or the U.K. Does the ban affect me?
The new Order states that, as long as a dual citizen presents both a valid passport from a non-designated country and a current U.S. visa, that individual will be permitted to enter the U.S.
If I travel, can I get back into the U.S. using the case-by-case assessment maintained in this Order?
The Order empowers the Secretaries of State and Homeland Security, in matters impacting the national interest, to issue visas and other immigration benefits on a case-by-case basis to nationals of countries for which visas and related benefits are otherwise blocked. However, there has been no guidance regarding how to request such a review and, in any event, such review is discretionary in nature .
I am from one of the 6 designated countries, but I am also a U.S. Legal Permanent Resident. Is it safe for me to travel abroad?
The new Order provides that the suspension of entry does not apply to Legal Permanent Residents. It is not clear, however, whether this encompasses those Legal Permanent Residents whose status is conditional.
I am from one of the 6 countries designated in the new Order. Will a case I have filed with USCIS be affected?
USCIS issued guidance on February 3, 2017, in relation to the first Executive Order, that they were continuing to adjudicate cases filed by nationals of the then 7 designated countries. We are unaware of any information indicating that this has changed in regard to the new Order.
If I am otherwise not impacted by the new Executive Order, are there other potential immigration issues of which I should be aware?
At this juncture, we have no reason to believe that cases filed with USCIS for foreign nationals who are not from one of the now 6 designated countries will be impacted. However, a draft Executive Order entitled “Protecting American Jobs and Workers by Strengthening the Integrity of Foreign Worker Visa Programs” is expected to be signed by President Trump and does suggest significant changes to the H-1B program. Any changes would have to be accomplished over time via statutory and regulatory modifications. However, we have seen the virtually immediate impact of the imminent shutdown of the premium processing option for H-1B status holders by USCIS, so we will continue to watch for new developments across agencies.