New White House Executive Order (EO) on Immigration (March 7, 2017)

As detailed in a previous update, in early February the Ninth Circuit Court of Appeals issued an order upholding a lower court’s decision to temporarily block the White House’s travel ban applicable to individuals from seven listed countries. The travel ban was embodied in Executive Order 13769, entitled Protecting the Nation from Foreign Terrorist Entry. You can find additional details regarding EO 13769 here.

Shortly thereafter, the White House announced that it would issue a new Executive Order on the same topic, apparently intended to address the courts’ concerns so as to survive legal scrutiny. Yesterday, the White House issued the new EO with the same name, replacing EO 13769. The new EO will take effect on March 16, 2017.

The new EO suspends the entry into the United States of nationals of six of the seven countries listed in the prior EO, including Sudan, Syria, Iran, Libya, Somalia and Yemen, for at least 90 days. While Iraq has been removed from the list, the EO references the possibility for heightened and undefined scrutiny of nationals of Iraq.

Addressing some of the concerns the courts identified regarding the initial travel ban, the new EO does not apply to individuals:

  • Who hold lawful permanent resident status (i.e., hold a green card) in the U.S.;
  • Who hold a valid visa on March 16;
  • Who are dual nationals of one of the six listed countries and any other country, but are traveling on a passport from that other country (not one of the six listed);
  • Who are admitted or paroled into the United States on or after March 16; or
  • Who have a document other than a visa that is valid on or issued after March 16, 2017, that permits travel to the United States (such as an advance parole document).

The new EO also provides that visas that were provisionally revoked solely as a result of the enforcement of EO 13769 are valid for the purpose of administering the new EO. For additional information, please see the Department of Homeland Security’s Q&A.

The White House has directed that during the 90-day ban, the Secretary of Homeland Security is to conduct a “worldwide review” to determine whether, and if so what, additional information is required from any country to determine that a national of that country does not pose a “security or public-safety threat” for purposes of adjudicating applications for visas, admission, or other immigration benefits.  Based on this review, additional countries may be added to the travel ban and, presumably, the ban for the six listed countries could be extended.

Immigration professionals across the globe are reviewing the new EO and issuing interpretive guidance, which may result in the revision of this summary. Regardless, individuals from the six impacted countries and Iraq are still advised to exercise discretion in traveling pending further developments.

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