February 10, 2017

Travel Ban Executive Order Update: What Businesses Need to Know

Changes coming from the White House, U.S. Customs and Border Protection (CBP), United States Citizenship and Immigration Services (USCIS), and the State Department (DOS) on travel and related issues are challenging companies and foreign workers. With litigation ongoing, issues related to the January 27, 2017 Executive Order outlined by the White House (January 27 EO) are fluid. On February 9, 2017, the Ninth Circuit Court of Appeals issued its decision keeping the temporary stay of the January 27 EO in place while the court proceedings in State of Washington v. Trump proceed. For now, there is no travel ban. Individuals from the banned seven countries (Iran, Iraq, Libya, Somalia, Sudan, Syria, Yemen) can continue to return to the U.S. under processes, procedures and rules in place prior to the January 27 EO. 

Executive Order Overview 

The January 27 EO generated confusion when it was issued. This was the third executive order issued by the White House immediately after President Trump’s inauguration that focused on immigration and enforcement. The January 27 EO was written to block immigrant and nonimmigrant entry for at least 90 days for “aliens from” seven countries — Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen. This EO also suspended the U.S. refugee program for at least 120 days and outlined an indefinite suspension of refugee processing for Syrians. In addition to the outright travel ban, the January 27 EO also eliminated the nonimmigrant visa interview waiver, mandated completion of the biometric entry/exit system for visa applicants entering and leaving the U.S., and demanded the government establish stricter screening standards and procedures for all visa programs for the continued and further detection of fraud, terrorist and criminal intent.

Government “Guidance” After January 27 EO

After the issuance of the January 27 EO, there was much confusion over the implementation, impact and individuals covered by the EO. Initial information from the White House, CBP and other government agencies was conflicting and led to additional questions for those traveling near term and in the future. The February 9 decision from the Ninth Circuit Court of Appeals upheld the stay of the implementation of the provisions of the January 27 EO. This means that the outright travel ban against the seven countries does not apply at this time, and permanent residents, foreign workers and visitors from these countries can continue to travel and be admitted into the U.S. However, there continue to be reports of much heightened scrutiny of ALL foreign nationals by CBP immigration officials at the airports. Therefore, individuals from the seven countries — especially those that are currently in the U.S. — need to weigh the risks of international travel at this time.  

After the January 27 order, and before the temporary stay was issued by U.S. District Judge James L. Robart, U.S. District Court, Western District of Washington, additional guidance was released by the White House, State Department, DHS, CBP and USCIS:

DHS Suspension of Implementation

Based on the pending litigation, the Department of Homeland Security (DHS) suspended any and all actions implementing the affected sections of the Executive Order entitled, “Protecting the Nation from Foreign Terrorist Entry into the United States." This included actions to suspend passenger system rules that flag travelers for operational action subject to the Executive Order. DHS personnel resumed inspection of travelers in accordance with standard policy and procedure.
Permanent Residents

The White House and CBP both stated that the EO did NOT apply to permanent residents of the United States (aka “green card holders”).

Dual Nationals

The State Department also confirmed that travel for dual nationals from any country with a valid U.S. visa in a passport of an unrestricted country was not restricted. Embassies and Consulates were also to continue to process visa applications and issue immigrant visas to otherwise eligible applicants who apply with a passport from an unrestricted country, even if they hold dual nationality from a restricted country. This means that dual national travelers will be reviewed based on the passport they present to CBP immigration officials. Dual nationals who are not nationals of one of the seven banned countries are not affected by the EO. 

Visa Revocation

The Department of State had, under the Executive Order, provisionally revoked all valid visas of nationals of those seven countries, with limited exceptions. That provisional revocation has now been lifted by the State Department, and those visas are now valid for travel to the United States, if the holder is otherwise eligible. Individuals whose visas are expired or were physically cancelled must apply for a new visa at a U.S. embassy or consulate, absent a CBP decision to grant parole or waive the visa requirement at the port of entry.  

Interview Waivers — Drop Box in India

DOS Visa Office has confirmed that the majority of interview waiver cases still can receive interview waivers. Specifically, cases covered by INA 222(h)(1)(A) and (B) are still eligible — under age 14 and over 79 and previous issuance of the same visa within one year. This means that the consulates in India are still accepting drop box applications. Keep in mind some cases may still be called in for a personal interview as this has happened even before the issuance of the January 27 EO.

USCIS Will Adjudicate Applications for Individuals From the Seven Banned Countries

USCIS has confirmed that it will continue to adjudicate applications for the individuals from the seven banned countries. This includes H-1B and other work visa petitions, I-140 petitions and I-485 adjustment of status applications. 

Other Countries

Prior to the temporary stay by Judge Robart, there were unsubstantiated rumors that the January 27 EO was going to be expanded to additional nationalities. With the continuance of the temporary stay based on the decision of the Ninth Circuit Court of Appeals, more countries will not be added at this time. However, all nationalities are being critically scrutinized by immigration officials at the airports throughout the U.S.

Litigation Overview

Lawsuits have been brought across the country since the issuance of the EO. On the night of Saturday, January 28, a federal judge in New York granted an emergency stay for citizens of the countries included in the ban and ruled that they could not be removed from the U.S. On January 30, 2017, the American Immigration Council, along with the Northwest Immigrant Rights Project and the National Immigration Project filed a nationwide, class action lawsuit challenging the January 27 Executive Order. Additional lawsuits have been brought in Hawaii, Massachusetts, New York, Virginia, and California.

The most notable lawsuit is State of Washington v. Trump, filed on February 3, 2017, in the U.S. District Court, Western District of Washington. U.S. District Judge James L. Robart granted a nationwide temporary restraining order on February 3, 2017, which enjoined and restrained the following provisions from further implementation: Section 3(c), Section 5(a), Section 5(b), Section 5(c) and Section 5(e). On February 4, the Department of Justice filed an emergency motion with the Ninth Circuit Court of Appeals for administrative stay and motion for stay pending appeal of the district court’s February 3, decision. Also, on February 4, the Ninth Circuit of Appeals denied the DOJ’s request for an immediate administrative stay, but issued a briefing schedule so that all briefs from the parties were due by February 6, 2017 at 3:00 p.m. PST. Many briefs and declarations were filed in this matter. A hearing with oral arguments was conducted on February 7, and the decision by the Ninth Circuit was released late in the day on February 9.  

In the Ninth Circuit’s 29-page decision, many issues were discussed, including those raised during the oral arguments. Highlights include:

Standing: The U.S. government argued that the district court lacked subject matter jurisdiction because the States of Washington and Minnesota had no standing to sue. In its decision, the Ninth Circuit determined that the States of Washington and Minnesota did allege sufficient harms to their proprietary interests (state universities, as well as their students, scholars and faculty).

Reviewability of the Executive Order: The U.S. government argued that the district court also lacked authority to issue the temporary nationwide stay because the President had unreviewable authority with respect to the admission of aliens into the U.S. The Ninth Circuit held that “there is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy.” The Ninth Circuit recognized that considerable deference is owed to the President on national security matters, but that the federal courts must review constitutional challenges to actions of the Executive Branch.

Likelihood of Success – Due Process: The States of Washington and Minnesota argued that the January 27 EO violated due process under the Fifth Amendment of the Constitution. The U.S. government argued that individuals affected by the EO had no rights under the Due Process Clause. A specific focus of the Ninth Circuit Decision was on permanent residents. Although the U.S. government argued that the issue of travel of permanent residents was now moot because of White House counsel’s interpretation of the EO, the Ninth Circuit stated the following in its decision: “[t]he White House counsel is not the President, and he is not known to be in the chain of command for any of the Executive Departments. Moreover, in light of the Government’s shifting interpretations of the Executive Order, we cannot say that the current interpretation of the White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings.” Based on this and its analysis of additional arguments relating to notice and an opportunity to be heard, the Ninth Circuit held that the U.S. government did not establish that it would likely succeed on its due process argument.

Likelihood of Success – Religious Discrimination: On this issue, the Ninth Circuit also raised that the States of Washington and Minnesota raised serious claims and constitutional questions and that consideration of these claims was reserved until the merits of the appeal could be fully briefed on both sides.

Balance of Hardships and the Public Interest: The Ninth Circuit determined that the U.S. government did not show irreparable injury to warrant that the ban on travel be lifted.

The Ninth Circuit denied the U.S. government’s emergency motion for a stay pending appeal. This means that the nationwide temporary restraining order issued by Judge Robart remains in place while the parties continue to litigate the matter. 

At the time of this writing, a further appeal has not yet been brought by the Department of Justice for review by the U.S. Supreme Court. The White House could also rescind the January 27 EO and address the issues raised by the Ninth Circuit Court of Appeals through issuance of a new EO. Clearly, more is to come with the State of Washington v. Trump, as well as the other lawsuits brought under the January 27 EO.

Additional Information

For more information on the January 27 EO, please see the following:

What’s Next

As outlined above, it is uncertain what the White House will do. They could appeal the Ninth Circuit’s decision further, they could continue to litigate the numerous lawsuits filed around the country, and/or they could rescind the January 27 EO and issue a new EO. For now, and it’s uncertain how long, the travel ban has been lifted and individuals from the seven countries can continue to travel into the United States. However, we have and continue to see stricter scrutiny and screening of all foreign nationals, including permanent residents, visitors and workers, who have been entering the U.S. since the issuance of the January 27 EO. Individuals traveling into the U.S. must have their documentation in order and be prepared to answer questions at the airport. CBP officials at the airport are conducting additional security and criminal background checks for individuals trying to enter the U.S., as well as checking cell phones, laptops and social media of travelers into the U.S. CBP has the right to do this type of inspection and reports indicate that these searches are happening more frequently. 

Issuance of the January 27 EO (and the prior immigration enforcement orders) is only the start of the impact of the Trump administration on immigration issues, enforcement and policy. 

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