Travel Considerations for Foreign Nationals Affected by President Trump’s Executive Order

UPDATE AS OF FEBRUARY 8: The President has appealed the Washington Court’s decision to issue a Temporary Restraining Order (TRO) blocking his Executive Order on travel to the United States Court of Appeals for the Ninth Circuit. On February 7, 2017, the Ninth Circuit heard arguments from both sides and is expected to make a decision, which could further affect the Executive Order’s implementation. Therefore, we continue to strongly advise against travel outside of the U.S. for individuals from the seven countries who are currently in the U.S. Individuals from the seven countries who are outside of the U.S. should at this time strongly consider traveling to the U.S. immediately, while the TRO is still in place. Individuals from other countries may travel.

UPDATE AS OF FEBRUARY 4: On February 3, 2017, the United States District Court for the Western District of Washington issued a temporary restraining order (TRO), prohibiting the federal government from enforcing Sections 3(c) [90-day travel ban on “immigrants and nonimmigrants” from designated countries], 5(a) [120-day ban on U.S. refugee program], 5(b) [prioritization of certain refugee claims], 5(c) [indefinite suspension of Syrian refugee admissions], and 5(e) [case-by-case refugee admissions] of the January 27, 2017 Executive Order on a nationwide basis. All U.S. land and air ports of entry are prohibited from enforcing these portions of the EO until further order from the court. The American Immigration Lawyers Association (AILA) has issued the following information: “DOS has confirmed that assuming there are no other issues in the case, provisionally revoked visas have been reversed and are once again valid for travel. All CBP Field Offices have been instructed to immediately resume inspection of travelers under standard policies and procedures. All airlines and terminal operators have been notified to permit boarding of all passengers without regard to nationality. AILA has also confirmed with CBP that individuals who arrived last weekend and had their visas physically cancelled as a result of the EO will not need to reapply for a new visa and absent any other admissibility issues will receive an I-193 waiver (Application for Waiver of Passport and/or Visa) upon arrival to the U.S. For those traveling by air, airlines have been instructed to contact CBP to receive authorization to permit boarding.”

NOTE: The following is the original article, which contains information that may no longer be current and in line with recent events.
As previously reported, on January 27, 2017, President Trump signed an Executive Order, entitled “Protecting the Nation from Terrorist Entry into the United States by Foreign Nationals.” The Order proclaims, among other things, that immigrant and non-immigrant entry into the United States by nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen (“seven countries”) would be “detrimental to the interests of the United States” and suspends entry of those nationals for 90 days unless the individual is traveling on a diplomatic visa, North Atlantic Treaty Organization visa, or C-2 visa for travel to the UN. Entry may still be facilitated for nationals of these countries on a case-by-case basis and when doing so would be in the national interest of the United States.

On Sunday, January 29, 2017, DHS issued a statement stating that the entry of lawful permanent residents  to the U.S. would be deemed to be in the national interest, absent receipt of significant derogatory information indicating a serious threat to public safety and welfare. Therefore, lawful permanent residents (“green card” holders) would be allowed into the U.S. on a case-by-case basis.

Since the Order was signed, several Federal District Courts have issued stays, which may affect the implementation of the Order. It is still unclear how the Order should be enforced, when and where it should be enforced, and what subsequent bans or travel restrictions may be coming.

We provide the following recommendations and insights based on the current Executive Order and on information available as of February 2, 2017.

  • Foreign nationals who are already in the U.S. and who are from one of the seven countries should NOT travel outside the country at this time. It is likely they will either be unable to return, or that they will be hassled or detained upon return. It is possible that they might not even be allowed to board a plane from a preclearance location outside of the U.S.
  • Foreign nationals who are not from one of the seven named countries may continue to travel under the current directives, but should be cautious upon return and should expect increased screening and delays. Simply having visited one of the seven countries should not result in a bar, but may subject the individuals to additional government scrutiny.
  • Individuals with dual citizenships from one of the seven countries and a country other than the U.S. should not be subject to the ban, as long as they travel using a passport from the third country and not from one of the seven countries.
  • Individuals who are nationals of one of the seven countries, who are located outside the U.S. and who are in possession of valid “green cards” are supposed to be allowed to board planes to the U.S. absent derogatory information indicating a serious threat to public safety and welfare Such individuals should expect extended screening, delays, and possibly detention. They should expect that their physical and electronic possessions will be screened, including social media or phone contacts. In the event that foreign nationals are asked by U.S. Customs and Border Protection (CBP) to sign a Form I-407, they should not, unless they agree to voluntarily abandon their lawful permanent residence. Signing a Form I-407 results in voluntary and generally irreversible abandonment of their permanent residence.
  • Individuals who are nationals of one of the seven countries, who are located outside of the U.S. and who are in possession of valid non-immigrant or immigrant visa stamps are cautioned that they will likely be unable to board a plane to the U.S. At this time, CBP is continuing to enforce the Order with respect to non-immigrants, despite the District Court stays.  Further, the U.S. Department of State (“DOS”) has announced the revocation of non-immigrant and immigrant visas issued to individuals from the seven countries. Even if such individuals are able to travel to the U.S., they will likely be subjected to extended screening, delays and detention. It is likely that they will not be admitted to the U.S.  Individuals who travel to the U.S. on non-immigrant or immigrant visas and are not allowed entry could ask to withdraw their applications for admission as opposed to being officially removed by CBP. An official removal order carries a five-year bar from returning to the U.S.
  • Individuals from the seven countries outside of the U.S. who do not have valid visas or green cards will likely be unable to travel to the U.S. under the current directives. U.S. consulates are not currently accepting applications for new visa stamps from nationals of the seven countries.
  • If there is a life-threatening emergency, affected individuals should contact immigration counsel to discuss their options (if any).
  • U.S. Citizens with a dual nationality from one of the seven countries should be allowed into the U.S. as long as they use their U.S. passports for travel. However, even U.S. Citizens who have ties to one of the seven countries could receive enhanced screening and should be prepared for delays.
  • CBP has issued Frequently Asked Questions regarding the Executive Order and individuals are encouraged to continue to follow immigration updates before making any foreign travel plans.

In response to rumors of plans to expand the travel ban to other countries, DOS has informed the American Immigration Lawyers Association (AILA) that there is no addendum, annex, or amendment now being worked on to expand visa revocations or the travel ban to countries other than those currently implicated in the Executive Order entitled, “Protecting the Nation From Foreign Terrorist Entry into the United States.” This includes Colombia and Venezuela which have been widely rumored to be under consideration. DOS confirmed that there is no information that supports such a rumor.

Right now, it is very difficult to know exactly what the next logical step will be. Even airports in certain jurisdictions are enforcing immigration bans differently. What we do know is that many democrats, along with a few republicans, are doing what they can to ensure President Trump’s order is reversed, as Senate Minority Leader Chuck Schumer said in a press conference this week.

Due to the constant changes in policy and implementation of the Order, nationals of the seven countries are encouraged to check with experienced immigration counsel before proceeding with international travel.

UPDATES FOLLOWING PUBLICATION OF THIS ARTICLE:

02/02/2017 – 4:30 p.m.: Lufthansa has allowed nationals of the seven countries to board planes to Boston only and ONLY until February 5, 2017, regardless of whether or not they are green card holders or non-immigrants. This is because the stay issued by a Massachusetts District Court specifically blocks the Executive Order from implementation until February 5, 2017: http://www.lufthansa.com/us/en/Travel-information. Being allowed to board a plane to the U.S. is not a guarantee that U.S. CBP would admit such individuals into the U.S. They could still experience delays, questioning and detention, and it is possible that CBP would not admit them into the U.S.

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