Paule, Camazine & Blumenthal, P.C. posted in Immigration on Friday, March 17, 2017.
By: Peter A. Gianino
On March 6, 2017, President Trump issued an executive order officially called “Protecting the Nation from Foreign Terrorist Entry into the United States,” but commonly referred to as the travel ban. The March 6 travel ban replaces the original executive order issued on January 27, 2017, which quickly became the subject of court battles and was found to be unconstitutional. The March 6 travel ban, which was set to become effective as of March 16, 2017, was issued by the Trump administration in an effort to address the deficiencies found in the original travel ban. The March 6 ban was the subject of lawsuits filed by the states of Hawaii, Washington, and Maryland, and was held to be unconstitutional by the federal district courts in Hawaii and Maryland shortly before it was scheduled to become operational. The Administration has said it would appeal and it may yet become operational.
The March 6 travel ban clarifies one area of confusion from the original order, in that it makes it clear that lawful permanent residents, or “green card” holders, are not subject to the ban. All permanent residents, regardless of their country of citizenship, are able to return to and reside in the U.S. without restrictions imposed by this travel ban.
If it becomes operational, the March 6 travel ban will apply to citizens and nationals of six specific countries, Syria, Iran, Libya, Somalia, Sudan, and Yemen, for at least 90 days. According to the order, the 90 day ban is intended to allow the government time to assess the current screening and vetting procedures. Iraq was not included in this March 6 list of countries, despite being included in the January 27 travel ban, because Iraq is considered to be, according to the order, a “special case.” The ban applies to citizens of the above listed six countries who were outside the U.S. on March 6, 2017, who did not have a valid visa as of 5:00 pm EST on January 27, 2017, and who did not have a valid visa on March 16, 2017 (now the date the ban becomes operational, if at all).
The travel ban does not apply to individuals who are citizens of more than one country, if one of those countries of citizenship is not one of the banned countries, and the individual will be traveling to the U.S. using the passport of the non-banned country.
The travel ban states that even individuals from one of the banned countries might be able to obtain a visa if the visa applicant is found to be eligible for a waiver of the ban. These waivers will be determined on a case-by-case basis by a consular officer or an agent with Customs and Border Protection. To be eligible for a waiver, the individual must demonstrate that denying entry to the U.S. would result in undue hardship for the individual, that the individual’s entry would not pose a threat to national security, and that entry to the U.S. would be in the national interest.
In addition to the ban on the issuance of visas to citizens of the named countries, the executive order also suspends the U.S. refugee program for a period of 120 days. This suspension means that no new refugee applications will be granted, regardless of an applicant’s country of citizenship. A waiver is also available for refugee applications, if the applicant can demonstrate that the individual’s entry would not pose a threat to national security, and that the entry to the U.S. would be in the national interest.
While the constitutionality of the new travel ban remains to be finally determined, it almost certainly will not be the last effort by the Trump administration to increase scrutiny of visa applicants from certain countries.