Summary of Second Trump Executive Order on Visa Issuance/Screening and Refugees
On March 6, 2017, the President signed a new executive order with the same title as the old Order, “Protecting the Nation from Foreign Terrorist Entry into the United States.” The new Order takes effect on March 16, 2017 and expressly revokes the January 27, 2017 Order.
The new Order prohibits entry into the U.S. by immigrants and visitors from six predominantly Muslim countries without requiring any individualized determination based on specific intelligence that the individuals are a security risk. The Order exempts certain categories of people, including lawful permanent residents and dual nationals traveling on a passport from a country that is not one of the six designated countries. The American Immigration Lawyers Association does not believe the new Order will withstand judicial scrutiny since the targeted countries are majority Muslim, and the Order fails to provide evidence that nationals of the six countries pose a threat to national security. Courts reviewing the first order also gave serious consideration to the discriminatory statements directed at Muslims made by the President and his surrogates.
In addition, the new Order suspends refugee resettlement to the United States for 120 days and drastically reduces the number of refugees that the US Refugee Assistance Program (USRAP) will resettle in fiscal year 2017 from 110,000 to 50,000. Syrian refugees are no longer indefinitely banned under the new order, though they are subject to the 120-day suspension of the refugee program. The new Order no longer gives preference to individuals facing religious persecution who practice minority religions in their country of nationality. Despite the minor changes made in the new Order, it will have devastating consequences for the USRAP. The new Order will not make us safer as a nation, and thousands of refugees who have been screened for resettlement will be trapped in dangerous conditions.
Ban on Entry of Nationals of Muslim-Majority Countries: The order bans immigrant and nonimmigrant entries for nationals of Syria, Iran, Libya, Somalia, Sudan, and Yemen for at least 90 days. Some categorical exceptions and case-by-case waivers could be applied to nationals of these 6 countries. Iraq, which was included in the first order, is not included in the new Order, although Iraqi nationals will be subjected to additional scrutiny.
Before individuals of the six countries can resume entering the U.S., an assessment of each country must be conducted by the DHS Secretary, Secretary of State, and Director of National Intelligence, to determine if additional information is needed in order to adjudicate a visa or other immigration benefit. The Secretary of State will then request the additional information from each country. If the country does not provide the additional information, or the DHS Secretary certifies that the country has a plan to provide that information, they will be included in a Presidential proclamation prohibiting entry of certain categories of foreign nationals. The Secretary of State, Attorney General or DHS Secretary can at any time recommend that additional countries be added to the list or taken off of the list.
Who the Order Applies To:
Foreign nationals of the designated counties who:
- Are outside the U.S. on 3/16/17,
- Did not have a valid visa at 5pm EST on 1/27/17, AND
- Do not have a valid visa on 3/16/17
Who the order DOES NOT Apply To:
- Legal Permanent Residents (LPRs or “Green Card Holders”)
- Foreign nationals admitted or paroled in the U.S. on or after 3/16/17
- Foreign nationals who have travel or admission documents to the U.S., other than a visa, which are valid on or after 3/16/17
- Dual nationals of one of the designated counties, who travel on a passport issued by a non-designated country
- Foreign national traveling on diplomatic of diplomatic-type visa, North Atlantic Treaty Organization visa, C-2 visa for travel to the United Nations, or G-1, G-2, G-3 or G-4 visa
- Foreign nationals who were granted asylum
- Any refugee who was already admitted to the U.S., or
- Any individual granted withholding of removal, advance parole, or protection under the Convention Against Torture
Who May Be Eligible for a Waiver:
A consular officer, or where appropriate, the Commissioner of CBP or the Commissioner’s delegee may decide on a case-by-case basis to issue a visa to, or permit the entry of, a national of one of the prohibited counties if:
- The national has demonstrated to the officer’s satisfaction that denying entry would cause undue hardship,
- That his or her entry would not pose a threat to national security, AND
- Would be in the national interest
[Section 3 (c) lists several examples]
The new Order confirms that no visa issued before March 16, 2017 will be revoked as a result of the Order, and that any individual with a revoked or cancelled visa as only of the prior, January 27, 2017 Order is entitled to a travel document for travel and entry to the U.S.
Suspension of U.S. Refugee Admissions Program (USRAP): The order suspends the USRAP for 120 days after March 16, 2017. During that time the USRAP application and adjudication process will be reviewed. The order does not apply to refugee applicants who were formally scheduled for travel by the Department of State before the March 16, 2017. The program will resume after the 120-day suspension period, for all countries except those which officials determine should remain on the prohibited country list.
Exceptions can be made on a case-by-case basis if it is in the national interest and if the person would not pose a threat to the security or welfare of the United States. In addition, for the current fiscal year, the order reduces the number of refugees to be admitted to the U.S. by more than half of the initial goal set by President Obama – from 110,000 to 50,000 – dropping U.S refugee admissions to the lowest level in a decade. Having already admitted 37,328 refugees as of March 6, 2017, the United States would only admit 12,000 more refugees for the remainder of the fiscal year. The order also directs the Secretary of State to determine the extent to which state and local jurisdictions may have greater involvement in determining the placement or resettlement of refugees in their jurisdictions.
Requires In-Person Interviews for Most Nonimmigrant Visa Applicants: The new order immediately suspends the Visa Interview Waiver Program (VIWP) and effectively mandates in-person interviews for all nonimmigrant visa applicants, unless an interview is not required by statute or otherwise excepted by the Order. The VIWP allowed consular officers to waive the interview requirement for applicants seeking to renew nonimmigrant visas within 12 months of expiration of the initial visa in the same classification. The VIWP has been used to waive the interview requirement only for travelers who have already been vetted and determined to be a low security risk and who have a demonstrated track record of stable employment and stable travel. The order calls for the Secretary of State to expand the Consular Fellows program, in an attempt to mitigate the Order’s effect on wait times. Until enough staff is hired, however, the Order will place enormous burdens on U.S. consulates and embassies – particularly high-volume posts – by increasing already extended interview wait times and processing times, wasting limited resources, and potentially decreasing the quality of consular interviews.
Requires a Uniform Screening and Vetting Standards: The order directs the Secretary of State, Attorney General, DHS secretary, and Director of National Intelligence to implement a program 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 of people within the U.S., or who present a risk of causing harm subsequent to their entry.
Requires the immediate implementation of Biometric-Entry Exit: The order directs agencies to expedite the completion and implementation of a biometric entry-exit system and includes reporting requirements. Since 1996, Congress has mandated that an automated entry-exit system be developed and implemented at all air, land, and sea ports of entry in an attempt to track those who overstay their visas. While DHS implemented biometric entry in 2006, a biometric exit system has been held up by numerous obstacles and logistical issues. The completion of an integrated biometrics entry-exit system would require significant funding. The FY 2016 Consolidated Appropriations Act authorizes up to $1 billion for a biometric exit program, to be collected through fee surcharges over a period of up to 10 years. DHS has noted that a comprehensive entry-exit system at all ports of entry will require additional resources.