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What you need to know about the travel ban in the 1/26/2017 Executive Order.

On Behalf of | Jan 29, 2017 | Executive Orders |

Immigrants and visa holders in the United States from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen should not travel outside of the United States until more is understood about the travel ban.  

The Travel Ban portion of the January 26, 2017 Executive Order:

On January 26, 2017, the President issued an executive order preventing the consulates from issuing visas (immigrant and non-immigrant) to people from Iran, Iraq, Libya, Somalia, Sudan and Yemen.  The Executive order also prohibits entry of all visa holders, and lawful permanent residents from these countries. 

The ban on visa issuance and entry is initially for 30 days, until and if certain reporting requirements are met at 60, 90, and 120 days after the Executive Order was issued.  It is unclear when or how these requirements will be met and it is possible they may never be met. 

Consulates will not issue new visas, and current visa holders will be refused entry.  

That means that consulates will not issue visas to anyone from the listed countries, and those who already hold visas or permanent residence will not be permitted to enter the United States.   Many visa holders who were in transit to the U.S. when the order was issued have been detained at airports, and some have been deported. 

As of 1/29/2017, lawful permanent residents may be permitted to enter the U.S., but should proceed with caution.

On January 29, 2017, the Department of Homeland Security stated that the ban does not apply to lawful permanent residents, absent evidence they would be a “threat” to the United States.  This still gives the border officers discretion to question and possibly detain lawful permanent residents.  

Case by Case Exception if entry is in the “National Interest.”

Exceptions to allow visa holders to enter will be made on a case by case basis if it is in the “national interest.”  There does not appear to be guidelines for making this determination and it is discretionary.  This means, in short, it is up to the customs and border protection officer.  

The travel ban is illegal.  

The Immigration and Nationality Act states: “…no person shall…be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth or place of residence.”   8 USC 1152(a)(1)(A)

Due to the rapid mobilization of the ACLU and other attorneys around the country, several Federal courts have ordered that anyone detained at an airport under the travel ban could not be deported.  These rulings are temporary, though, and we will know more in the coming days.  

What can you do if you are from one of the listed countries?

* File for Naturalization if you are eligible

        Although it is unclear if the ban will prohibit USCIS from naturalizing citizens from the listed countries, you should consult with an attorney regarding your eligibility for naturalization and any risks of applying in the current climate. 

*    If you hold a nonimmigrant visa (tourist, student, employment) do not leave the United States until more is known about the travel ban.

        If you are currently in the United States, do not travel outside of the U.S. until more is known about the travel ban.  It is possible you may not be permitted to return to the U.S. 

*    If you are a permanent resident, consult with an attorney prior to travel to discuss the risks and strategies upon re-entry.  

    Although permanent residents are now permitted to enter the U.S., there is still risk of refusal.  This is also an uncertain time and the rules may change without notice.   Although attorneys are generally prohibited from representing clients during airport inspections, your attorney might be able to prevent your removal if they know when you will return and have a signed representation form in advance.  

*    If you are a United States Citizen (by naturalization or birth) and have visited any of the listed countries, you may be subject to additional questioning and scrutiny upon your return.  

What next?

Thanks to massive protests at airports around the country and the hard work of attorneys and legal organizations, the first steps to block this discriminatory and unconstitutional Executive Order have been successful.  Alarmingly, not all of the ports of entry have consistently followed the courts’ orders.  It will be a long legal battle ahead to fully block the Executive Order and the situation is in flux.   Anyone from the listed countries should seek up-to-date information before contemplating travel outside the U.S.