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Executive Order Affecting Immigrants and Visa Holders from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen

UPDATE 03/09/2017 New Executive Order Replaces Travel Ban

On March 6, 2017, the President revoked the January 27 Executive Order regarding the travel ban and replaced it with a new Executive Order. You can read about this new Order and revised travel ban issued on march 6, 2017, here.

UPDATE 02/10/2017 Court of Appeals Maintains Block on Travel Ban

On Thursday, February 9, 2017, the U.S. Court of Appeals for the Ninth Circuit again ruled against the Government's emergency request to reinstate the President's travel ban. The 29-page decision came after the Appellate Court heard additional oral arguments from both parties on February 7, 2017, regarding the Executive Order titled, "Protecting the Nation from Foreign Terrorist Entry Into the United States."

In trying to get the travel ban reinstated, the Government argued that the courts do not have authority to review the President's Executive Order concerning national security. The Court of Appeal disagreed and stated that there was no legal precedent supporting the Government's argument. The Court further stated that the Government's claim that the President's Executive Order cannot be reviewed, "runs contrary to the fundamental structure of our constitutional democracy."

The new decision from the Court of Appeals continues to block the President's travel ban contained in Executive Order Sections 3(c), 5(a), 5(b), 5(c) and 5(e), which are summarized in our earlier updates below. Therefore, at this time, all travel from the seven countries, as well as the refugee admission program and Syrian refugee admissions should continue pursuant to the usual procedure in effect before the signing of the Executive Order.

The case will now return to the U.S. District Court for the Western District of Washington for further proceedings, unless the Government appeals to the U.S. Supreme Court. We will continue to provide updates as this case progresses.

UPDATE 02/06/2017 Federal District Court Blocks Entire Travel Ban

On Friday, February 3, 2017, the U.S. District Court for the Western District of Washington granted an emergency motion for temporary restraining order collectively filed by the States of Washington and Minnesota. The Court's order effectively blocks the following sections of the Executive Order:

  • Section 3(c) that suspended entry into the U.S. of nationals from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen for 90 days
  • Section 5(a) that suspended the U.S. Refugee Admissions program for 120 days
  • Section 5(b) that prioritized refugee claims based on pertaining to a religious minority in the applicant's country of origin
  • Section 5(c) that suspended admission for Syrian refugee indefinitely
  • Section 5(e) to the extent that this provision prioritized refugee admission only to certain religious minorities.

The above-referenced sections of the Executive Order are blocked by the Washington District Court order. The block is effective nationwide, not just in Washington and Minnesota, the two states that filed the lawsuit.

On Saturday, February 4, 2017, the Department of Homeland Security (DHS) issued a press release in response to the Washington Court Order, stating that the agency suspended any and all actions implementing the above-listed sections of the President's Executive Order.

DHS also filed an appeal with the Court of Appeals for the Ninth Circuit, seeking reversal of the order from the Washington District Court. DHS also asked the Court of Appeals to issue a stay of the Washington order, so that DHS can continue refusing to admit travelers and refugees to the U.S. while the appeal is pending. The Court of Appeals will hear DHS's appeal, but the Court refused to issue the emergency stay at this time. Therefore, the restraining order imposed by the Washington District Court remains valid for now.

Original Article 01/30/2017

On January 27, 2017 the U.S. President issued an executive order that negatively affects citizens of Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen who have valid visas to travel to the U.S. or who wish to apply for such visas. The order also suspends the refugee program for 120 days. Several lawsuits have already been filed throughout the country seeking to block the executive order. This article summarizes the most contentious provisions of that order, and provides an update as to pending court orders blocking parts of the President's action.

The order provides the following in pertinent part:

  • It suspends the U.S. Refugee Admissions Program (USRAP) for 120 days (with some limited exceptions on a case-by-case basis). After 120 days, admission of refugees will resume only from those countries with adequate procedures to ensure U.S. security, pursuant to an assessment by the U.S. government. Once admission of refugees is resumed, the U.S. government will give priority to refugees claiming religious persecution but only if they belong to a minority religion in the country of origin.
  • It reduces the number of refugees to be admitted during the fiscal year from 110,000 to 50,000.
  • It halts the processing of Syrian refugees indefinitely.
  • It bans entry to the U.S. for at least 90 days for citizens of Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen, whether they have temporary visas or green cards (permanent residence), and prohibits U.S. Consulates abroad from issuing visas to citizens from these countries (with some limited exceptions on a case-by-case basis).
  • It provides that other countries may be added to the list of banned foreign national at a later time.
  • It eliminates the Visa Interview Waiver Program that previously allowed some individuals to renew their visas without the need for an interview (not to be confused with the Visa Waiver Program which is a different benefit).
  • It orders federal agencies to adopt screening standards and procedures for all immigration benefits seeking to identify fraud and likelihood that the applicant will do harm.
  • It orders federal agencies to evaluate the applicant's "likelihood of becoming a positively contributing member of society" and "ability to make contributions to the national interest."
  • It orders agencies to expedite completion and implementation of the entry-exit biometrics system that has been in the works for over a decade.

Pending lawsuits and standing court orders:

The Customs and Border Protection (CBP) began implementing the executive order on January 27, 2017, and started detaining travelers at international airports throughout the country and preventing them from entering the U.S., despite the fact that they were in possession of valid U.S. visas or green cards. As a result, several travelers, through their attorneys, filed lawsuits in federal court and applied for emergency stays, asking judges to block the President's executive order. As of the date of this article, the following court orders have been issued, partially blocking the President's executive order:

  • A federal judge from the U.S. District Court of Massachusetts issued a temporary restraining order on January 29, 2017, that orders the CBP to limit secondary inspection and detention, and to admit to the U.S. visa holders, permanent residents and refugees based on the law and regulations that existed prior to the President's executive order. The order is valid for seven days and the court would schedule a hearing prior to the expiration of this restraining order.
  • A federal judge from U.S. District Court for the Eastern District of New York issued an emergency stay on January 28, 2017, that prohibits the U.S. government from removing from the U.S. any individuals with approved refugee petitions, approved U.S. visas or permanent residence, or other individuals from the seven countries named in the President's executive order who would otherwise be legally authorized to enter the U.S. This lawsuit was initiated as a class action.

Both court orders noted that the plaintiffs have a strong likelihood of success on the merits to show that the President's executive order regarding admission to the U.S. of individuals with approved refugee petitions, approved visas or permanent residence violates their Due Process and Equal Protection as guaranteed by the U.S. Constitution. Additional lawsuits have been filed in federal courts in Virginia and Washington State.

Response from the Department of Homeland Security:

On January 29, 2017, after considerable backlash from citizens, human rights organizations and in response to several court orders, the Secretary of the Department of Homeland Security announced that permanent residents (green card holders) from the seven countries identified in the executive order will be admitted into the country unless there is evidence, on a case-by-case basis, that the applicant poses a serious threat to public safety.

Also on January 29, 2017, after several news reports that CBP was violating the court orders, the Department of Homeland Security issued a press release stating that it was taking all necessary steps to comply with the court orders.

Status of visa application at U.S. Consulates abroad:

The court orders mentioned above only apply to individuals who already have an approved visa, permanent residence, or approved refugee application. At this time, U.S. Consulates abroad are prohibited from issuing any new U.S. visas to nationals from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen. This prohibition includes both initial visa applications and applications for renewal.

Travel advisory:

Although the courts have ordered CBP to allow affected individuals into the country, at this time those court orders are only temporary. Therefore, it is recommended that individuals affected by the President's executive order who are presently in the U.S. do not travel abroad for the time being. We will continue to monitor the status of the lawsuits and how the President's executive order is being implemented and we will update this article accordingly.

In the meantime, if you have any questions regarding this issue or you need assistance regarding immigration-related matters, please contact Raluca (Luca) Vais-Ottosen at 608-252-9291 or rvo@dewittross.com.

About the Author

Raluca has assisted numerous clients with immigration matters ranging from family-based and individual immigration applications, to employment related visas and I-9 Employment Eligibility Verification issues. In addition to her immigration practice, she also has an extensive background in Employment Law. She assists companies in a number of areas, including but not limited to claims of workplace discrimination, harassment and retaliation, termination and constructive discharge, workplace investigations by state and federal agencies, as well as employment litigation.

Contact Luca by email or by phone at (608) 252-9291.

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