- Further Updates on the U.S. Entry Ban
- March 9, 2017
- Law Firm: Fragomen Del Rey Bernsen Loewy LLP - New York Office
On Friday, January 27, 2017, U.S. President Donald J. Trump signed an executive order that prohibits foreign nationals from Iran, Iraq, Libya, Somalia, Sudan, Syria or Yemen from entering the United States for 90 days. The order was put in place immediately and resulted in confusion at U.S. ports of entry and abroad. The U.S. government has since provided further guidance on implementation of the executive order, including new information for lawful permanent residents, dual nationals and visa applicants from non-banned countries, but the current situation remains fluid.
The following is Fragomen's update on the status of the U.S. entry ban. Because this guidance is subject to frequent change, please contact your designated Fragomen professional before traveling to or departing from the United States.
For purposes of the following, the term "country of concern" refers to Iran, Iraq, Libya, Somalia, Sudan, Syria or Yemen. Unless otherwise indicated, the term "dual national" refers to an individual who is a national of a country of concern and another foreign country.
Who Is Subject to the Ban?
U.S. Customs and Border protection has clarified that the ban will be imposed on those who present a passport from one of the seven countries of concern, with the exception of U.S. lawful permanent residents (LPRs), as discussed below.
Dual nationals are subject to the executive order but should not be prohibited from entering if they present a passport from a non-banned country. However, because of ambiguities in how the Department of State is treating the ban, dual nationals who have in the past represented themselves to be a citizen of one of the seven countries - including presenting a passport in connection with a benefit or a visa application - may want to postpone travel until there is further clarity.
Lawful Permanent Residents Who Are Nationals of a Country of Concern
LPRs who are nationals of a country of concern are not subject to the ban, according to new guidance from the Administration announced by the White House Press Secretary today. Though the Administration has not yet posted its guidance, a copy, which appears genuine, has been obtained and circulated by national press outlets. Previously, the Administration cautioned that LPRs might be subject to the ban in limited circumstances.
As such, LPRs may travel to the United States without restriction. However, because it may take time for border inspection officers to receive the new White House guidance, LPRs should be prepared for questioning at U.S. ports of entry and should carry a copy of the guidance when they travel internationally.
Nonimmigrants Who Are Nationals of a Country of Concern
Nonimmigrants who are nationals only of a country of concern will not be issued a U.S. nonimmigrant visa or be permitted to enter the United States for the duration of the ban. Though the executive order allows for a discretionary waiver of the entry ban in the national interest, this is not expected to be available except in extraordinary circumstances. In addition, the government has not yet provided a process for foreign nationals to follow in seeking a waiver.
Other Lawful Permanent Residents and Nonimmigrants
LPRs and nonimmigrants who are not from a country of concern but have traveled to one of the seven countries should expect to be questioned closely when entering the United States. All LPRs and nonimmigrants should expect heightened entry procedures when returning to the United States in the current environment.
Visa Waiver Program Travelers
Visa Waiver Program (VWP) travelers who have traveled or may have ties to a country of concern should check the status of their registration in the Electronic System for Travel Authorization (ESTA) to ensure that it remains valid. If travel to a country of concern took place after their most recent ESTA registration, foreign nationals should reapply for ESTA for authorization to use the VWP in the future.
As a reminder, since December 18, 2015, travelers who are nationals of one of the seven countries of concern or who have traveled there since March 2011 are prohibited from using the VWP and instead must obtain a B-1/B-2 visa for business or tourist trips to the United States. Exemptions and waivers may be available to those who have traveled to a country of concern for certain very limited government, military, humanitarian, reporting and business-related purposes.
Global Entry Members
Non-U.S. citizens with nationality of one of the seven countries of concern may have their registration in the Global Entry trusted traveler program revoked due to the entry ban. Global Entry registrants should check the status of their registration in GOES, CBP’s trusted traveler registration website.
Revocation of Global Entry membership does not, itself, prohibit travel to the United States, but merely restricts affected travelers from using the Global Entry kiosks for immigration and customs inspection. Instead, they must wait in line to be inspected by a CBP officer.
U.S. citizens are not subject to the entry ban, including those with dual nationality in the United States and a country of concern. However, U.S. citizens who have traveled to Iran, Iraq, Libya, Somalia, Sudan, Syria or Yemen should expect to be questioned closely when reentering the United States.
Impact of the Entry Ban on Adjudications
There are reports that USCIS adjudicators have been told to suspend work on cases filed by or on behalf of foreign nationals subject to the entry ban. Though information is limited, the suspension could affect the processing of nonimmigrant and immigrant petitions, applications for employment-based adjustment of status, naturalization applications, employment authorization documents and other employment-based applications and petitions.
Notwithstanding the executive order, the State Department has confirmed that U.S. consulates continue to exempt certain visa applicants from in-person interviews. Foreign nationals from a non-banned country may be eligible for an interview waiver if: (1) they are renewing a visa in the same classification that is still valid or has expired within the last 12 months; or (2) are under 14 or over 79 years of age. Visa applicants should check the website of the relevant consulate for specific information, which is subject to frequent change.
Duration and Scope of the Entry Ban
Currently, the executive order suspends the entry of foreign nationals from the countries of concern for 90 days, or through April 27, 2017. The order could be extended beyond this date.
While the ban is in effect, the U.S. government will conduct a 60-day review of worldwide security policies. Nationals of countries that do not cooperate in the review could be added to the list of travelers subject to the entry ban.