D’Alessio Law Group: Updates and Guidance on the US Entry Ban
On Friday, January 27, 2017, U.S. President Donald Trump signed an executive order that prohibits nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen from entering the United States for the next 90 days, or through April 27, 2017. The order was implemented immediately and generated widespread confusion at U.S. ports of entry and abroad, including at international airports.
Since the executive order’s release, we have heard from numerous clients expressing concern over whether the ban will impact their U.S. travel plans. To advise our clients and provide clarity on this situation, D’Alessio Law Group has assembled the following update.
Note that this situation is highly fluid and subject to rapid change, and this statement may require frequent updates. For this reason, please contact D’Alessio Law Group before traveling to, or departing from, the United States, in order to receive the most current information. Further, if you hold a passport or were born in Iran, Iraq, Libya, Somalia, Sudan, Syria or Yemen, we strongly advise you to contact our office to discuss your current travel and immigration options before you attempt any travel.
For purposes of this update, the terms “country of concern”, “listed countries” and “designated countries” refer to Iran, Iraq, Libya, Somalia, Sudan, Syria and/or Yemen. Unless otherwise indicated, the term “dual national” refers to an individual who is a national of both a country of concern and another foreign country.
What Does the Ban Do?
The ban prohibits nationals from the designated countries from entering the U.S. until at least April 27, 2017. The ban also instructs all U.S. embassies and consulates to cease issuing nonimmigrant and immigrant visas to nationals of the designated countries, for the same duration of time. Visa interviews for citizens of these countries have also been suspended.
A, C, NATO, C-2 and C-3 visa holders (diplomatic visas) are exempt from this suspension.
Nationals of the designated countries who plan to leave the U.S. on international travel will not be allowed to reenter the U.S. upon their return.
Here are a list of questions and concerns we are hearing from our clients;
**Please note this content is for informational purposes only and does not constitute legal advice. You must consult with one of our attorneys for an assessment of legal options.
FOR GREEN CARD HOLDERS:
Q: I’m not a citizen of any of the designated countries (Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen), I was not born in any of the designated countries, and I do not hold a passport of any of the designated countries. I do hold a US Green Card. How does this ban affect me?
A: You are not affected by this travel ban.
FOR NON IMMIGRANT VISA HOLDERS:
Q: I’m not a citizen of any of the designated countries, and I was not born in any of the designated countries, and I do not hold a passport of any of the designated countries. I do hold a US non-immigrant Visa (O, P, L, E etc). How does this ban affect me?
A: You are not affected by this travel ban.
FOR TRAVELLERS WHO ARE “NOT” CITIZENS OF THE DESIGNATED COUNTRIES:
Q: I’m not a citizen of any of the designated countries, and I was not born in any of the designated countries, and I do not hold a passport of any of the designated countries. How does this ban affect me?
A: You are not affected by this travel ban. However, if you recently traveled to any of the countries of concern, you should expect close and lengthy questioning upon your return to the U.S.
FOR TRAVELLERS WHO ARE DUAL CITIZENS OF THE US AND ANOTHER COUNTRY:
Q: I hold a passport from the US and another country. How does this ban affect me?
A: You are not affected by this travel ban, even if you hold a passport from one of the designated countries.
FOR CITIZENS OF THE DESIGNATED COUNTRIES OF CONCERN:
Q: I am a citizen of one of the designated countries. How does this ban affect me?
A: You are prohibited from entering the United States for the next 90 days during this evaluation period.
Q: I was born in one of the designated countries but I do not hold a passport from that country nor do I live in that country. How does this ban affect me?
A: You are prohibited from entering the United States for the next 90 days during this evaluation period.
FOR TRAVELLERS WHOSE PARENTS ARE CITIZENS OF THE DESIGNATED COUNTRIES:
Q: My parents were born in one of the designated countries but I was not, and I do not hold a passport from that country, nor do I live in that country. How does this ban affect me?
A: You are not affected by this travel ban. However, if you recently traveled to any of the countries of concern, you should expect close and lengthy questioning upon your return to the U.S.
ADVOCACY
Q: I’m not a citizen of any of the designated countries, and I was not born in any of the designated countries, and I do not hold a passport from any of the designated countries, but I do want to protest this ban on my social media. Is this ok?
A: Social media is being reviewed by US consulates as part of the visa application process. If you need to apply for a US visa, you are certainly free to express yourself, but please use your best judgment.
Who IS Affected by the Ban?
The entry ban applies to nationals of the designated countries of concern. U.S. Customs and Border protection has recently clarified that the ban will be imposed on all those who present a passport from one of the seven designated countries, with exception of U.S. lawful permanent residents (LPRs), as discussed below.
The ban initially applied to “immigrants and nonimmigrants,” meaning it covers those with a temporary visa (e.g. H-1B, O-1, L-1), as well as applicants for adjustment of status with advance parole. However, the U.S. government has since announced that the ban does not apply to lawful permanent residents (LPRs) of the United States, including U.S. Green Cards holders, even if they are a national of a country of concern.
Dual Nationals
Dual nationals are subject to the entry ban, but should not be prohibited from entering if they present a passport from a non-banned country. However, because of ambiguities in how the Department of State is treating the ban, dual nationals who have in the past represented themselves to be a citizen of one of the seven countries – including presenting a passport in connection with a benefit or a visa application – may want to postpone travel until there is further clarity.
Lawful Permanent Residents Who Are Nationals of a Country of Concern
LPRs who are nationals of a country of concern are not subject to the ban, according to new guidance from the Administration announced by the White House Press Secretary today. Though the Administration has not yet posted its guidance, a copy, which appears genuine, has been obtained and circulated by national press outlets. Previously, the Administration cautioned that LPRs might be subject to the ban in limited circumstances.
As such, LPRs may travel to the United States without restriction. However, because it may take time for border inspection officers to receive the new White House guidance, LPRs should be prepared for questioning at U.S. ports of entry and should carry a copy of the guidance when they travel internationally.
Nonimmigrants Who Are Nationals of a Country of Concern
Nonimmigrants who are nationals only of a country of concern will not be issued a U.S. nonimmigrant visa, or be permitted to enter the United States for the duration of the ban. While the executive order allows for a discretionary waiver of the entry ban for reasons of national interest, this waiver is not expected to be made available except under extraordinary circumstances. Further, the U.S. government has not yet provided instructions on how to apply for a waiver.
Individuals Who Have Recently Traveled to Countries of Concern
The executive order does not apply to individuals who merely traveled to a country of concern. However, LPRs and nonimmigrants who are not nationals from a country of concern, but have recently traveled to one of the designated countries, should expect to be questioned closely when entering the United States. Given the current environment, all LPRs and nonimmigrants should expect heightened security and entry procedures when returning to the U.S., regardless of where they are traveling from.
Visa Waiver Program Travelers
Visa Waiver Program (VWP) travelers who have traveled or may have ties to a country of concern should check the status of their registration in the Electronic System for Travel Authorization (ESTA) to ensure that it remains valid. If travel to a country of concern took place after their most recent ESTA registration, foreign nationals should reapply for ESTA to ensure that it remains valid. If travel to a country of concern took place after their most recent ESTA registration, foreign nationals should reapply for ESTA for authorization to use the VWP in the future.
As a reminder, since December 18, 2015, travelers who are nationals of one of the seven countries of concern or who have traveled to one of these countries since March 2011 are prohibited from using the VWP and instead must obtain a B-1/B-2 visa for business or tourist trips to the United States. Exemptions and waivers may be available to those who have traveled to a country of concern for certain very limited government, military, humanitarian, journalism and business-related purposes.
Global Entry Members
Non-U.S. citizens with nationality from one of the seven designated countries may have their registration in the Global Entry trusted traveler program revoked due to the entry ban. Global Entry registrants should check the status of their registration in GOES, U.S. Customs and Border Protection’s trusted traveler registration website.
Revocation of Global Entry membership does not, by itself, prohibit travel to the United States, but merely restricts affected travelers from using the Global Entry kiosks for immigration and customs inspection. Instead, they must wait in line to be inspected by a CBP officer.
U.S. Citizens
U.S. citizens are not subject to the entry ban, including those with dual nationality in the United States and a country of concern. However, U.S. citizens who have recently traveled to one of the designated listed countries should expect to be questioned closely when returning to the United States (see above).
Impact of the Entry Ban on Adjudications/Case Processing
In an official policy statement, U.S. Citizenship and Immigration Services (USCIS) recently confirmed that adjudicators will continue to process all cases filed by, or on behalf of, nationals of the designated countries who are already in the U.S. Initially, the Department of Homeland Security (DHS) instructed USCIS to suspend work on all such cases, even cases filed by, or on behalf of, individuals already residing in the United States.
USCIS has also confirmed that applications not conferring travel authorization (such as I-140 Immigrant Visa Petitions) will still be processed for individuals from the seven listed countries, even individuals not currently in the U.S.
However, if you are currently outside the U.S., are a national of a country of concern, and have filed an immigration application with U.S.C.I.S. that does confer travel authorization (e.g. work or business visa), it is unclear at this time if your case will be processed or not.
Duration and Scope of the Ban
Currently, the executive order prohibits the entry of foreign nationals from the designated countries for 90 days, or through April 27, 2017. However, the order could be extended, and could be expanded to include additional countries.
While the ban is in place, the U.S. government will conduct a 60-day review of security policies in countries worldwide. Nationals of countries that do not cooperate in the review could be added to the list of travelers subject to the entry ban.
Advice for Current Travelers
If you are stopped or detained when attempting entry to the U.S., we recommend the following:
- No matter what, do not sign an I-407 form, even if you are told this will make things faster. If you sign this form, you will relinquish your green card.
- Demand to see an attorney.
- Be patient. Attempt to contact your loved ones.
- It is likely Border Patrol will be checking your social media accounts. Keep this in mind when posting and sharing on social media.
Advice for Future Travelers
If you have imminent plans to enter or leave the U.S., we recommend the following:
- If you are not a U.S. citizen and have plans to leave the U.S., we would advise you to not travel internationally. We especially advise those on work or student visas to avoid travel. You may miss school or work, and lose your status, due to the ban.
- If you absolutely must travel, know that you will be denied re-entry to the U.S. for at least three months. Make sure you are prepared for this outcome.
- If you travel to one of the designated countries listed in the executive order, expect to be questioned closely when re-entering the U.S.
This update is for informational purposes only. If you have any questions about the entry ban, please contact the immigration professional at D’Alessio Law Group with whom you work. Call us at (310) 909-3934.
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