Employers should plan to immediately cancel for at least 90 days all international travel by employees or individuals doing business with your company who will be subject to the travel ban, and prepare for potential disruption with service providers whose employees may be impacted by the executive order.
This morning, the Trump administration revoked its January 27 “travel ban” executive order (EO) and reissued an amended version. Like the prior action, the March 6 EO
- imposes a 90-day suspension of entry into the United States for individuals from a series of enumerated countries;
- charges the US Department of Homeland Security (DHS) with a global, country-by-country review of the identity and security information each country shares in support of US visa determinations; and
- suspends the Refugee Admissions Program for 120 days while DHS and its interagency partners review screening and admission procedures.
The EO also contains several key differences from the January 27 order (both in substance and in its initial enforcement), many of which directly address the concerns of the courts in which the first order was challenged.
The updated EO includes the following provisions:
- The order will become effective at 12:01 am Eastern Standard Time (EST) on March 16, 2017.
- For 90 days (i.e., until June 14, 2017), any foreign national “from” Sudan, Syria, Iran, Libya, Somalia, and Yemen who is outside the United States when the EO goes into effect, does not have a valid visa as of the same date, and did not have a visa at 5:00 pm EST on January 27, 2017 will be barred from travel to the United States. Any foreign national of one of these six countries who held a valid visa prior to 5:00 pm EST on January 27 or holds one as of the effective date of the order will not be affected and may enter the United States.
- The travel ban does not include nationals of Iraq. The administration notes that “Iraq has taken steps to increase their cooperation with the United States in the vetting of Iraqi nationals and as such it was determined that a temporary suspension is not warranted.”
- “From” is clarified to include both nationals and citizens of the six countries. However, the order exempts dual nationals when such an individual travels on a passport issued by a nondesignated country.
- “Valid visa” includes both nonimmigrant and immigrant visas, as well as visas that were revoked and subsequently reinstated solely as a result of the January 27 order. Visas will not be revoked solely as a result of the EO.
- The suspension does not apply to lawful permanent US residents.
- The EO also does not apply to advance parole holders or those traveling on diplomatic or diplomatic-type visas.
- The Visa Interview Waiver program is still suspended, as it was under the January 27 order.
- Individuals who were already granted asylum or refugee status are explicitly exempted. First-time refugee arrivals, regardless of nationality, will be permitted to enter the United States if their travel was already formally scheduled by the Department of State.
- The EO does not single out Syrian refugees, who under the current order will be treated the same as all other refugees. (The original order banned Syrian refugees indefinitely and suspended the entry of other refugees for 120 days.)
- The EO provides for case-by-case waivers through which DHS and the Department of State can exempt an individual if the agencies deem that his or her entry is in the national interest and will not pose a threat to national security, and that denying such individual’s entry under the EO will cause undue hardship.
- US Citizenship and Immigration Services will continue to adjudicate applications for naturalization and adjustment of status (permanent residence) filed by individuals from the affected countries.
In addition, US President Donald Trump released a memorandum that directs the US secretary of state, US attorney general, and secretary of DHS to develop and implement “heightened screening and vetting protocols and procedures” related to visa issuance. The memorandum includes calls for notice-and-comment rulemaking to “rigorously enforce all existing grounds of inadmissibility,” and a series of reports regarding visas, adjustments of immigration status for foreign nationals already present in the United States, and costs associated with the current refugee program.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
Eric S. Bord
Lisa Stephanian Burton