Immigration Ban: Some Clarity, More Confusion

Full Impact of President’s Executive Order Provisionally Revoking All Nonimmigrant and Immigrant Visas Issued to Nationals of Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen Is Still Not Clear

On Friday, January 27, 2017, President Trump signed an Executive Order entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” which barred the entry to the U.S. of nationals of Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen (the “Affected Countries”) for at least 90 days. We previously provided an alert describing the Executive Order and its implications. Since we published our alert, a previously unreleased letter from the Deputy Assistant Secretary of the Department of State (“DOS”) dated January 27, 2017 (the “Letter”) has been made public as a result of one of the lawsuits challenging the Executive Order. This Letter provisionally revoked all nonimmigrant and immigrant visas that have been issued to foreign nationals from the Affected Countries. The Executive Order and the Letter have created a great deal of confusion, concern and anxiety, and they have led to very inconsistent enforcement.

If validly issued[1], the Letter has the immediate effect of not only prohibiting foreign nationals from the Affected Countries from being able to board a plane or other vessel to seek entry into the United States despite being in possession of a previously issued and unexpired nonimmigrant visa[2], but also of technically making deportable any of nationals of the Affect Countries who are in the U.S. pursuant to lawful nonimmigrant admission. While foreign nationals from one of the Affected Countries may be deportable, their underlying status and, if applicable, work authorization have not been revoked. Persons falling under this class of affected individuals should therefore be able to continue to carry on with all of the activities that their status allows, though under the unfortunate shadow of potential deportation.

We have not heard of any cases where the Department of Homeland Security (“DHS”) has initiated removal proceedings against any foreign national from an Affected Country based on the provisional revocation of their nonimmigrant visa by the Letter. We also do not anticipate that DHS will attempt to initiate mass deportations based on this ground for several reasons. First, this ground for deportation is at odds with the concepts of “status” and “lawful admission.” Second, the use of the word “provisionally” in the Letter also suggests that the revocations may be reversed after the 90-day travel ban has expired. Third, a foreign national who has been lawfully admitted to the U.S. with a valid visa and who is considered deportable must be given proper notice and has the right to contest removal before an immigration judge. If eligible, a foreign national also has the right to seek any relief from removal that may be available. Additionally, a foreign national has the right to seek federal court review after having exhausted his/her administrative remedies. Finally, a systematic effort to deport nationals from the Affected Countries would place an enormous administrative burden on our already overwhelmed immigration courts, and would allow nonimmigrants from the Affected Countries who are present in the U.S. pursuant to lawful admission to directly challenge the legality of the Letter and Executive Order in a manner that is not currently available.

As noted previously, the Letter also revokes immigrant visas of foreign nationals from the Affected Countries. There has been much confusion as to the reach of the revocation order with respect to immigrant visas. An immigrant visa and a Permanent Resident Card (which is issued on the Form I-551 and is colloquially referred to as a “Green Card”) are not the same thing. The Letter only invalidates immigrant visas for the limited subset of foreign nationals from the Affected Countries who have received an immigrant visa abroad, but have not yet entered the U.S. We now know that Green Card holders are unaffected by the Letter. On January 29, 2017 DHS issued a press release clarifying that the Secretary of Homeland of Security has deemed the entry of lawful permanent residents (Green Card holders) to be in the national interest and therefore excepted from the Executive Order’s travel ban (though DHS reserves the right to deny entry to any lawful permanent resident where there is “significant derogatory information indicating a serious threat to public safety and welfare”). Furthermore, on February 1, 2017, The White House, through its Counsel to the President, issued a “Memorandum to the Acting Secretary of State, Acting Attorney General and Secretary of Homeland Security” further clarifying that the provisions of Executive Order suspending entry of nonimmigrants and immigrants from the Affected Countries do not apply to Lawful Permanent Residents of the U.S. The Memorandum also instructs the Heads of these Agencies to convey the interpretive guidance to those responsible for enforcing the Executive Order.

There has been confusion as to what effect the Executive Order has on dual citizens from the Affected Countries. DOS has issued a press release confirming that U.S. “Embassies and Consulates around the world will continue to process visa applications and issue nonimmigrant and immigrant visas to otherwise eligible visa applicants who apply with a passport from an unrestricted country even if they hold dual nationality from one of the seven restricted countries.” Additionally, U.S. Customs and Border Protection (“CBP”) has confirmed in its Question and Answer section of its recently created special webpage that dual citizens with will be processed for admission if they present a passport issued by a country other than one of the Affected Countries.

The ongoing roll out of President Trump’s new immigration policies have been disjointed. It has also created chaos, family hardships and a wave of doubt and fear among temporary visa holders and Permanent Residents as to security of their status in this country and whether they can safely travel internationally and be readmitted to the United States. The President’s Executive Order has also caused needless disruption to U.S. employers, universities and research institutions. The Executive Order is the subject of multiple court challenges – several of which have resulted in court orders enjoining the Government from fully implementing it. It remains a fluid situation as the current court orders are temporary and continue to be litigated.

Until the dust settles, foreign nationals from one of the Affected Countries who are present in the U.S. under a nonimmigrant visa should not depart the U.S. Even foreign nationals from a predominantly Muslim country that is not on the banned list may wish to be conservative and only depart the U.S. in cases of emergency.

Parker Gallini will continue to up-date you as more guidance is issued and as we have a better sense of the impact these rules are having on legal immigration.

Footnotes.

1. The section of Immigration and Nationality Act that the Letter  relies upon requires that the revocation be performed by “the consular officer or Secretary of State.” The Letter’s signor does not appear to be either and therefore raises the question as to whether it has been properly issued.

2. Nonimmigrant visas exempted from this Executive Order are “A-1, A-2, G-1, G-3, G-4, NATO, C-2 and certain diplomatic visas.” Additionally, the Executive Order allows the Secretaries of State and Homeland Security to waive the travel ban on a case-by-case basis where it is determined to be in the national interest.

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Parker Gallini LLP
Business Immigration Law Firm
460 Totten Pond Road, Suite 350
Waltham, MA 02451
(781) 810-8990

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