On January 27, 2017, President Trump issued another Executive Orders on immigration. This one, though, entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” basically bans from entry people “from” seven countries, suspends refugee admissions temporarily, and reduces overall refugee admissions for FY2017. The Executive Order (EO) also imposes ideological vetting, and provides some exceptions only for non-Muslim refugees. More Executive Orders are expected to be forthcoming addressing legal immigration and other topics. It is important to note that much of this is political in nature and intended to appeal to his voter base. But, the ramifications are tremendous with already vetted refugees being stopped at airports today and others with visas and green cards being stopped as well. Lawsuits have been filed, people are or will be demonstrating, the social media and the press are on fire with this issue, and the seven countries are likely to retaliate in their treatment of admissions of US citizens. All of this will, sadly, split families and affect business. Ironically, the President issued the order on Holocaust Remembrance Day, a sad reminder of how the US back then turned refugees from Europe away. January 27, 2017 will go down in history in this author’s opinion as another shameful day in our nation’s history when we turned away the most vulnerable refugees at a time when there are millions of refugees in the world seeking safe haven. By the way, the term “refugee” has a legal definition and the order refers to people who have been legally determined to qualify to be refugees versus migrants for other reasons.
The orders clearly have their origin from the 79 Stroke of a Pen playbook from the anti-immigration group, Center for Immigration Studies. However, some of the objectives require funding and/or statutory changes that must come from Congress, or require regulatory changes, all of which may or may not happen, and even if they do, may not happen for months or years. Some of this is subject to legal challenge in the courts. So, stay tuned – this is a very fluid situation without much guidance as you’ll see below.
The particulars are scary to many immigrants and their families and employers, not to mention to the immigration lawyer bar. I can’t think of anyone who does not want our country to be safe. But is this route the best one and the most effective one to sweep a broad brush across a lot of people? It may take some time to further digest the meaning and interpretation of key specific words in the order, but in the meantime we are cautioning people not to travel. The summary below includes some of my own opinions and commentary and some issues raised by the American Immigration Lawyers Association. I have a separate post on the January 25 Border Security and Enforcement Executive Order which focuses on enforcement at the border.
Purpose and Policy
- To keep America safe through the visa issuance process by not admitting “those who engage in acts of bigotry or hatred (including “honor” killings, other forms of violence against women, or the persecution of those who practice religions different from their own) or those who would oppress Americans of any race, gender, or sexual orientation.
Comment: Is there not some hypocrisy here given the person elected to the Presidency?
Suspension of Issuance of Visas and Other Immigration Benefits to Nationals of Countries of Particular Concern
- Pursuant to a statutory section of the Immigration and Nationality Act (INA)§212(f), the Order suspends “entry” (of immigrants [green card holders] and nonimmigrants [visa holders]) for 90 days (until April 27, 2017) of “aliens ‘FROM’ countries” designated pursuant to INA §217(a)(12). [The term “from” is discussed below.]
- The Countries identified in INA §217(a)(12) are Iraq and Syria specifically. But the countries listed here also include Yemen, Libya, Sudan, Somalia and Iran. (See comment below)
- The Order excludes diplomats, NATO visas, C-2s (United Nations-related visas), and G visas (international organization officials and employees and their immediate family members).
- Department of Homeland Security (DHS), Department of State (DOS) and Director of National Intelligence (DNI) are to conduct an immediate review to determine the information needed from any country for adjudication of any visa, admission, or other benefit under the INA to make sure that the person is who they claim to be and is not a security or public safety threat.
- Within 30 days, DHS must submit a report to the President of its conclusions and include a list of the countries that do not provide adequate information for adjudications. Identified countries will be given 60 days to start providing required information.
- After 60 days, DHS will submit a list of countries recommended to be included in a Presidential Proclamation prohibiting the “entry of foreign nationals” (excluding diplomats, NATO, C-2s, and G visas) from countries that have not complied until compliance occurs.
- Additional countries may be added at any time.
- There is a narrow exception permitting issuance of visas or other immigration benefits “to nationals of [such] countries” on a case-by-case basis when it is in the national interest during the suspension period.
- The Order Imposes reporting requirements 30, 60, 90, and 120 days from the date of the EO.
Comment: INA §212(f) pertains to “entry.” Immigration law has a lot of complicated concepts dealing with entry, arriving alien, and admission. It’s not clear what this means in the EO. What does reference to “other immigration benefits under the INA” mean? Adjustment of status to permanent resident? nonimmigrant extensions or change of status? etc. adjudicated by USCIS?
Does the suspension on “entries” also mean that DOS must cease issuing visas? We’re already hearing that people cannot get on planes in the sending country. Many countries have US pre-flight inspection. On the one hand, the EO references visas and other immigration benefits may be issued if “in the national interest” during the suspension period, but elsewhere it states that only “entries” are suspended and it also refers to “suspension of issuance of visas.”
What does “aliens from [the designated] countries” mean? “Foreign nationals” from such countries, e.g., a Thai permanent resident or nonimmigrant worker in Libya? “Nationals” of such countries – born there but not a citizen? Citizens of those countries but not born there? What about dual citizens or dual nationals? What if a person is a citizen or dual citizen of a designated country but hasn’t been there in 20 years? What about people who were neither born there nor are citizens of these countries but are there now or have visited these countries? Will they be barred from entry to the USA because they are coming back “from” the designated country? [In my office, I am cautioning clients who meet any of these possible options to not travel until we get more guidance.]
INA 217(a)(12) referenced in the Executive Order enacted in 2011, specifically designated Iraq and Syria as not being permitted to participate in the Visa Waiver program because of their governments “repeatedly provided support of acts of international terrorism.” By not participating in Visa Waiver, that means people have to get visas at a US consulate or Embassy. It authorized the DHS to designate “other areas or countries.” Under the Obama Administration, additional people who needed visas were:
- Nationals of Visa Waiver Program (VWP) countries who have traveled to or been present in Iran, Iraq, Sudan, or Syria on or after March 1, 2011 (with limited exceptions for travel for diplomatic or military purposes in the service of a VWP country).
- Nationals of VWP countries who are also nationals of Iran, Iraq, Sudan, or Syria.
Therefore, President Trump has added Yemen and Somalia outside of INA 217(a)(12) AND is preventing issuance of visas for at least 90 days to people “from” the countries named above. The program under President Obama slowed down Iraqi immigration for some time but never explicitly prohibited visas from being issued for everyone from Iraq (or Syria). Thus, this EO is much more expansive than INA 217(a)(12).
Implementing Uniform Screening Standards for All Immigration Programs
- The EO directs DOS, DHS, DNI, and the FBI to implement a program to identify individuals “seeking to enter the United States on a fraudulent basis with the intent to cause harm, or who are at risk of causing harm subsequent to their admission.”
- This will be done by creating uniform screening standards and procedures (such as in-person interviews); creation of a database of identity documents; and by amending application forms to ask more questions “aimed at identifying fraudulent answers and malicious intent”; a mechanism to ensure that individuals are who they claim to be; a process to evaluate the person’s “likelihood of becoming a positively contributing member of society” and “ability to make contributions to the national interest”; anda mechanism to assess whether the applicant has the intent to commit criminal or terrorist acts after entering the United States.
- The order requires reporting 60, 100, 200 days of the date of the EO.
Comment: This is the “extreme vetting” that the President discussed on the campaign trail. This type of additional screening will result in significant backlogs at USCIS offices at the local and service center level, consular processing backlogs, and crowding of secondary inspection sites at CBP ports of entry, resulting in a stifling of business and economic contributions of those seeking to come to the U.S. Without doubt, given the nature of the President’s anti-immigrant advisors, the intent is to slow down all of immigration processing to reduce the flows of immigrants, whether legal or not.
The U.S. already has a robust system in place for vetting all visa applicants, particularly after the expansion of security screening after 9/11. Several of these components already exist including biometrics capture in all applications of any type, and fingerprints taken to confirm identity at interviews with DHS and DOS. Visa application forms go on for pages asking all sorts of intrusive questions. While on the one hand, it is important to know an applicant’s intentions at the time of visa application or admission, the stickier question for law enforcement investigation is at what point in time does a person become radicalized to become a terrorist? Law enforcement have arrested and/or prosecuted people who came here as kids with visas or green cards, who later naturalized and only many years later became radicalized. Therefore, this system is unlikely to address that problem.
The “vetting” criteria of the “likelihood of becoming a positively contributing member of society” and “ability to make contributions to the national interest” are stunning. Most immigrants don’t make national interest contributions although many do. How will positive contributions be defined? These are very subjective criteria and will create significant and often insurmountable barriers for many individuals – again, making it so hard to immigrate that it will slow the process and stem the flow of legal immigrants. Further, there is no statutory requirement in the law for these things now other than one particular visa category (EB-2 National Interest Waiver).
Will CBP also have to do this type of screening again at the border at time of admission? If so, this will create significant delays at CBP ports of entry. Also, CBP officers aren’t trained or necessarily qualified to make determinations on whether a person will contribute to society or the national interest.
Realignment of U.S. Refugee Admissions Program for Fiscal Year 2017
- The Order suspends U.S. Refugee Admissions Program (USRAP) for 120 days and halts processing and admission of Syrian refugees indefinitely, until the President determines sufficient changes have been made to ensure USRAP aligns with national interest.
- Under limited exceptions, individual refugees can be admitted on a case-by-case basis if it is in the national interest, including when the person is a religious minority in his/her country of nationality facing religious persecution (i.e., not Muslim, presumably of any stripe), when admitting the person would enable the U.S. to conform its conduct with a preexisting international agreement, or when the person is already in transit and denying admission would cause undue hardship. Admission cannot pose a risk to the United States.
- During the120 day period, DOS/DHS shall review the USRAP application and adjudication process and determine/implement additional procedures to ensure those who are approved do not pose a threat.
- Applicants already in the USRAP process may be admitted once revised security procedures are implemented.
- After 120 days, USRAP admissions will resume only for nationals of countries where DOS, DHS, and DNI have jointly determined that additional procedures are adequate to ensure U.S. security.
- Once USRAP is resumed, refugee claims based on religious persecution are to be prioritized, but only if person is a minority religion in their country of nationality. DOS and DHS shall recommend legislative changes to assist with such prioritization if necessary.
- The refugee ceiling is lowered from 110,000 to 50,000 for the remainder of FY 2017.
- The EO imposes reporting requirements on the prioritization of claims 100 and 200 days from the date of the EO.
- The EO directs DHS to examine laws to determine the extent to which state and local jurisdictions may have greater involvement in determining placement or resettlement of refugees in their jurisdictions.
Comment: 50,000 would be the lowest ceiling on refugee admissions in a decade, and comes at a time when the world is experiencing a massive forced migration crisis. Completely halting the refugee process for 4 months is unprecedented. After 9/11, USRAP was suspended for less than 3 months. The 120-day suspension will mean that U.S. families that have already been separated for many months, if not years, will be further delayed from reuniting, and those that were already approved for admission as refugees will not be let in after all. This is already happening!
Most importantly, refugees are already required to go through an extensive vetting and security clearance process that includes background checks, biometrics, medical screening and in-person interviews. Again, keep in mind that the EO and discussion here about refugees is about people who have already been determined under International and US law to have been or will be persecuted based on their race, religion, nationality, membership in a particular social group, or political opinion. We are not talking here at all about migrants seeking entry into the US for other reasons.
Rescission of Exercise of Authority Relating to the Terrorism Grounds of Inadmissibility
- Directs agencies to consult and consider rescinding TRIG [INA §212(a)(3)] exemptions and waivers and implementing memoranda.
Comment: Only Congress can rescind INA 212(a)(3) and any exemptions or waivers, not DHS. DHS can only deal with implementing memoranda or regulations that must be consistent with statute. DHS can make recommendations to Congress.
Expedited Completion of the Biometric Entry-Exit Tracking System
- The EO directs agencies to expedite completion and implementation of a biometric entry-exit tracking system for all travelers to the United States.
- The EO imposes reporting requirements in 100, 200, 365 days of the date of the EO, and every 180 days thereafter until system is fully operational.
Comment: Biometrics have been collected from most individuals upon entry since 2009 (US-VISIT, ESTA) but it has been much more challenging to implement a system for collecting data from those departing from the U.S. DHS has identified three primary obstacles that have delayed implementation of the collection of exit data: (1) collection of such data would disrupt the flow of travelers through air terminals; (2) air carriers and airport authorities have so far blocked testing of a method that incorporates the collection of biometric data into passenger processing at the departure gate; and (3) there are questions about which personnel would be responsible for collecting departure data.
Although the benefits of knowing who has left the country are not as significant as knowing who is entering the country, other parts of immigration law require individuals be able to document more readily when they left the USA (e.g., compliance with voluntary departure orders, proving departure from the USA so as not to trigger the 3- or 10-year bars, etc.)
Visa Interview Security
- Directs DOS to immediately suspend the Visa Interview Waiver Program and ensure compliance with INA §222 interview requirements. (This visa interview waiver was for people who already previously held the same visa type and biometrics were already on file.) [Do not confuse this with the Visa Waiver program. The big seven countries above do not participate in Visa Waiver.]
- The EO expands Consular Fellows Program “to ensure that nonimmigrant visa interview wait times are not unduly affected.”
Comment: INA §222(h) requires a personal interview of a visa applicant, but grants consuls abroad discretion to waive the requirement. Suspending the VIWP 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 decreasing the quality of consular interviews. Visa interview waivers are only granted to low risk travelers who have already been vetted by the U.S. government, such as the very elderly, very young, or individuals who have demonstrated a track record of stable employment, stable travel, and/or a previous determination of low security risk. Consular resources should be devoted to high risk or new visa applicant cases where eligibility or security is a concern.
The VIWP is largely utilized for employment-based nonimmigrant applicants, such as H, O, P, and L, who are simply seeking a renewal visa. Requiring everyone to go through an interview will impede the ability of employment based visa applicants to obtain a visa and return to the U.S. quickly, which will disrupt U.S. businesses and the flow of commerce. Requiring every person to be interviewed, even those that have already been vetted, will increase security risks for already crowded consulates and embassies, as more people will be required to enter the premises.
Consular Fellows must be hired, trained (including language training in some cases), and obtain security/country-specific clearances. In addition to the fact that these Fellows will be inexperienced, it will take a significant amount of time and resources to place them at consular posts, and this will not lend quick relief to increased processing times and resource challenges.
Imposing additional visa application burdens on foreign nationals invites reciprocal requirements being imposed by foreign governments, thereby restricting the ability of American citizens to travel abroad for business or tourism.
Visa Validity Reciprocity
- Directs DOS to review all nonimmigrant reciprocity agreements to ensure they are “truly reciprocal” in terms of visa validity periods, fees, and other treatment of Americans abroad. The EO directs DOS to adjust reciprocity agreements to the extent practicable for countries that do not treat U.S. nationals equally.
Transparency and Data Collection
- The EO directs DHS, in consultation with the AG, to collect and publish, in 180 days and every 180 days thereafter, information regarding the number of foreign nationals in the U.S. who have been charged or convicted with terrorism-related offenses while in the U.S.; removed from the United States based on terrorism-related activity or national security reasons; the number of foreign nationals in the U.S. who have been radicalized after entry into the U.S. and engaged in terrorist acts or provided support to a terrorist organization; and, information regarding the number and types of acts of gender-based violence against women or honor killings by foreign nationals of people in the U.S.
- The EO directs DOS to report costs associated with USRAP at the federal, state, and local level within one year.
General Provisions.
- EO will be implemented consistent with applicable law and subject to appropriations.
- EO does not create any enforceable rights or benefits.