Dykema Gossett PLLC

Immigration Focus

Executive Order Immediately Suspends Entry to the U.S. by Restricted Nationalities for 90 Days as of January 27

Executive Order Immediately Suspends Entry to the U.S. by Restricted Nationalities for 90 Days as of January 27

What are the travel implications of the EO signed January 27, 2017?

Who is affected? The EO mentions aliens “from countries referred” to in Section 217(a)(12) of the Immigration and Nationality Act, as amended (INA), which relates to use of the Visa Waiver Program (VWP). Assuming that those “aliens” affected are chosen in a similar manner to how U.S. Customs and Border Protection (CBP) modified the requirements of the Electronic System Travel Authorization (ESTA) for the Visa Waiver Program (VWP) (81 FR 8979 – 2/13/16), then those affected would be nationals of Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen.

  • What about dual nationals? ESTA does exclude certain dual nationals. In some of the countries above, if you are born in that country and acquire citizenship elsewhere, you are still considered by that country as a national no matter what you may do to divest yourself.
  • Does it mean that if you were born in a country designated that you are affected or do you also have to be citizen? It seems the focus of the EO is on nationality/citizenship based on the information below and also note that CBP says they will apply “U.S. legal standards” not merely by reference to laws and practices of foreign governments. This conclusion is supported by the excerpt below on questions as to dual nationality for ESTA purposes in From 81 Reg. 8982 (2/23/16).

On January 21, 2016, in relation to changes to the VWP, DHS and DOS stated that nationals of VWP countries who are also nationals of Iran, Iraq, Sudan, or Syria could not participate in VWP. Of course, it also excluded nationals of VWP countries who travelled in those countries after March 1, 2011, with limited exceptions. The excerpt below from the CBP FAQs on the VWP program changes under the Terrorist Travel Protection Act outlines the definition of a, “dual national,” for purposes of qualification for the VWP.

How is “dual citizen” or “dual national” defined? What if I was born in a country, but never lived there and do not consider myself a national or citizen?

We will make nationality determinations in accordance with U.S. legal standards and practices, not merely by reference to the laws and practices of foreign governments. If an individual believes that he or she is eligible for an ESTA travel authorization, the individual should apply for an ESTA, answer all questions truthfully and accurately, and that individual’s eligibility for an ESTA authorization will be determined in accordance with U.S. law.

What ends for these affected nationals? Paragraph 3(c) of the EO states that ENTRY to the U.S. is suspended immediately as of January 27, 2017, when the final EO is signed for a period of 90 days (NOT 30 as was stated in an earlier leaked draft), whether based on a nonimmigrant or immigrant visa. So, we appear to know that the nationals restricted may not be allowed to enter the U.S. by CBP at our ports of entry for at least 90 days from January 27, 2017, even if they have valid visas. The title to Section 3 refers to a “Suspension of visa issuance and other immigration benefits (adjudications)” as well, but the text at paragraph 3(c) of the EO does not state the same.

In addition, Section 3 of the EO provides the excuse that such suspension is necessary to deal with all of the additional investigative burden on agencies (Secretary of State, Secretary of Homeland Security, and the Director of National Intelligence) to determine the information needed from countries to adjudicate “any visa, admission, or other benefit under the INA(adjudications)...” to verify applicants’ identities and if they pose a security or public safety threat. The prior draft EO included the word, “adequate,” before the phrase “to determine.” So, the standard is harsher.

  • What about visa applications at consular posts? Not addressed.
  • What about waivers being reviewed by the Admissibility Review Office (ARO) of CBP? Not addressed.
  • What about petitions filed or to be filed with USCIS? Not addressed.
  • What about applications for L or TN status with CBP at our ports of entry by dual nationals? Not addressed, but ENTRY sure is.
  • What about humanitarian grounds for admission or documentary waivers? Not addressed.

Based on the actual language of the signed EO, we do not know but we will hope that applications and petitions continue to be accepted related to such restricted nationals. We must wait and see if the process is just put on hold post receipt by the applicable agencies.