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What to Know About the March 6 Travel PAUSE Executive Order 2.0

What to Know About the March 6 Travel PAUSE Executive Order 2.0

On March 6, President Trump signed a new Executive Order (sometimes referred to as Executive Order 2.0 in this article) suspending travel of certain nationals to the United States (U.S.). The rollout of this Executive Order certainly appears to have involved more pre-planning than that done as to the now revoked previous order subject to federal litigation. The U.S. Department of Homeland Security (DHS) actually issued Q & As on the same day the order was signed. This time, the Executive Order basically provides a ten day heads up before the effective date of the order to cause a travel “pause” to the U.S. for 90 days from 12:01 AM Eastern Standard Time as of March 16, 2017. In addition, Attorney General Sessions coordinated a statement with the execution of the travel suspension as well noting that the six nations affected were designated state sponsors of terrorism or have served as safe havens for terrorists.

The suspension of entry in the new Executive Order will not apply to nationals of Iraq, because Iraq has taken steps to increase cooperation with the U.S. in vetting Iraqi nationals.

What Happened to Executive Order 13769, the prior travel suspension order subject to litigation in the Ninth Circuit Court of Appeals?

It is revoked as of March 6, 2017 and replaced with the new Travel Pause Executive Order issued on the same day.

What Foreign Nationals are not affected by this new Executive Order (2.0)?

This new Executive Order does not apply to:

  1. Current lawful permanent residents (LPRs) of the U.S.
  2. Foreign nationals. who have valid visas issued by the U.S., even if the individual is a foreign national of Sudan, Syria, Iran, Libya, Somalia, and Yemen. (Note that visas provisionally revoked pursuant to the prior Executive Order on travel by foreign nationals are valid for purposes of administration the Executive Order 2.0.)
  3. Dual nationals traveling on a passport of a non-designated country. (Apparently, DOS officials will determine if a dual national of one of six designated nations will be able to apply for an immigrant or nonimmigrant visa, if overseas.)
  4. Foreign Nationals paroled or admitted into the U.S. on or after 12:01 AM Eastern Standard Time as of March 16, 2017.
  5. Foreign Nationals with documents valid as of 12:01 AM Eastern Standard Time as of March 16, 2017, other than a visa, permitting travel to the U.S. and to seek entry and admission to the U.S. (e.g. advance parole document).
  6. Foreign Nationals traveling on diplomatic or diplomatic type visas (e.g. NAT), C-2 for travel to the United Nations, or G-1 to G-4 visas.
  7. Foreign nationals granted asylum, any refugee already admitted to the U.S. or those already granted withholding of removal, advance parole, or protection under the United Nations Convention Against Torture. 

What Foreign Nationals ARE AFFECTED by this Executive Order 2.0?

Foreign Nationals of the following six countries: Sudan, Syria, Iran, Libya, Somalia and Yemen who:

  1. Are outside of the U.S. at 12:01 AM Eastern Standard Time as of March 16, 2017;
  2. Who did not have a valid visa (immigrant or nonimmigrant) at 5:00 PM, Eastern Standard Time on January 27, 2017; AND
  3. Who do not have a valid visa (immigrant or nonimmigrant at 12:01 AM Eastern Standard Time as of March16, 2017.

When does the Executive Order 2.0 Travel Suspension Start?

12:01 AM, Eastern Standard Time, on March 16, 2017 is the Effective Date.

What is the time frame for the suspension? 

90 days starting on March 16, 2017 at 12:01 AM Eastern Standard Time. Thus, the travel pause would apparently end on June 14, 2017.

What Happens After the Effective Date of the New Pause/Suspension Order?

  • Within 20 days of March 16, the Secretary of DHS, the Secretary of the DOS, and the Director of National Intelligence (DNI) will submit a report on the information needed from each country for adjudications and a list of countries which do not provide this information.
  • After submission of the report, the Secretary of the DOS shall request that all foreign governments on the list start providing the required information within 50 days of notification.
  • At any point after the submission of the list, the DHS Secretary, in consultation with the Secretary of State and the Attorney General, may submit to the President the names of any additional countries recommended for similar treatment, as well as the names of any countries that they recommend for removal.
  • The Secretary of State, the Attorney General, the Secretary of Homeland Security, and the DNI will implement a program, as part of the process for adjudications, to identify individuals who seek to enter the U.S. on a fraudulent basis, who support terrorism, violent extremism, acts of violence toward any group or class of people within the U.S., or who present a risk of causing harm subsequent to their entry.

Does this Executive Order Revoke Visas?

NO, the Executive Order’s terms alone do not cause the revocation of visas (immigrant or nonimmigrant). In addition, those visas cancelled or revoked due to Executive Order 137689 shall not be the basis for inadmissibility for any future determination about entry or admissibility. The visas marked cancelled or revoked as a result of the Executive Order 137689 will also allow the individuals possessing them to travel to the U.S. upon receipt of a travel document from DOS.

Will US Citizenship and Immigration Services (USCIS) and the Department of State (DOS) change their activities based on Executive Order 2.0?

USCIS will adjudicate Naturalization Applications(N-400) and applications for Permanent Residence (I-485) even if the beneficiaries are nationals from the listed countries. Refugee interviews will also continue. There is no mention about the continued adjudication of other petitions/ applications.

DOS may suspend scheduling interviews for those affected foreign nationals from March 16 to the end of the suspension period in June.

How do you apply for a waiver of the Suspension of the Ability to Travel for those Affected?

By applying for a visa at a consular post of the DOS as well as via application to the Commissioner of U.S. Customs and Border Protection (CBP). Note that waivers approved at a consular post are effective for the visa process and any subsequent entry on the visa issued. At present the procedure to request the waivers is murky at best and we have no idea on the time it will take for the review of such requests.

When are waivers of the travel pause possible?

  1. Foreign nationals previously admitted to the U.S. for a continuous period of work, study, or other long term activity, who are outside of the U.S. on the effective date of the new Executive Order and when the denial of reentry during the suspension period would impair that activity.
  2. Foreign nationals with significant contacts with the U.S., who are outside of the U.S. on the effective date of the new Executive Order for work, study, or other lawful activity.
  3. Foreign nationals seeking to enter the U.S. for significant business or professional obligations when the denial of entry during the suspension period would impair those obligations.
  4. Foreign nationals seeking to enter the U.S. to visit or reside with a close family member (e.g. spouse, child, or parent) who is a U.S. citizen, legal permanent resident, or the holder of valid nonimmigrant visa who was lawfully admitted, when the denial of entry during the suspension period would cause “undue hardship.”
  5. Foreign nationals who are infants, young children, adopted children, or someone needing urgent medical care or someone whose entry is otherwise justified by the special circumstances of the case.
  6. Foreign nationals employed by or behalf of the U.S. government (or as an eligible dependent of such employee) and the employee can document that he or she has provided faithful and valuable service to the U.S. Government
  7. Foreign nationals traveling for purposes related to an international organization designated under the International Organizations Immunities Act (IOIA), 22 U.S.C. 288 et seq., traveling for purposes of conducting meetings or business with the U.S. Government, or traveling to conduct business on behalf of an international organization not designated under the IOIA.
  8. Foreign nationals who are landed Canadian immigrants applying for visas at a location within Canada.
  9. Foreign nationals traveling as a U.S. government sponsored exchange visitor.

What to do in preparation for March 16 travel pause?

Some considerations:

  1. For those foreign nationals who are subject to this new travel pause, requests for expedited appointments at consular posts may be an option before March 16.
  2. For those foreign nationals who are subject to this new travel pause with expired visas but who are in the U.S. lawfully, it is important to consider canceling travel plans based on the effective date of the new travel pause.
  3. Consideration should be given to filing premium processing fees with USCIS, when applicable as to pending petitions, but this point assumes that there may be a risk to delayed processing of nonimmigrant petitions submitted on behalf of foreign nationals subject to the travel pause.
  4. Consider compiling supporting documentation if an Executive Order related waiver application may be needed during the suspension period.

As usual, this situation will be fluid. This update is only an initial outline of the potential impact of the Executive Order and does not provide legal counsel. For more information please contact Kathleen Campbell Walker (kwalker@dykema.com) or another member of the firm’s immigration group.