Notice: This article was originally drafted for release during the week of March 13. Due to the rapidly changing legal background with respect to the challenges to the new Executive Order, a determination was made to hold the release of the article as to more fully inform our clients and friends of the status of the matter. It is clear; however, that status will continue to evolve, and so this article is being released even though some of the information in it will be dated by the time it is received by the reader.
On January 27, 2017, Executive Order 13769 was issued which suspended, for 90 days, the entry into the U.S. of certain aliens from seven countries including Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. The operation of that Order was subsequently enjoined on a nation-wide basis.
In response to that litigation, on March 6, 2017, a new Executive Order was issued which appears to have the same intent as the first Executive Order, but also attempts to deal with the legal concerns articulated by the courts which enjoined its operation. On March 15, a federal judge in Hawaii issued a nationwide temporary restraining order which froze the entire Executive Order. Other litigation in opposition to it is pending.
The new Executive Order removed Iraq from the list of countries subject to the temporary travel ban. It directed the Secretary of Homeland Security to conduct a review of information needed from each foreign country for the adjudication of petitions for visas to enter the U.S. The Secretary of State shall request that those foreign countries that do not supply that information regarding their nationals be added to the list of countries from which travel to the U.S. would be suspended. That list may be adjusted subsequently, if there is evidence that that country has adequately shared such information or has an adequate plan to do so.
The new Executive Order specified that it will only apply to foreign nationals who were outside the U.S. on March 16, which was to have been the effective date of the new Order, did not have a valid visa at 5:00 p.m. on January 27, 2017 and do not have a valid visa on March 16, 2017. There are further exceptions to its application for lawful permanent residents, those who have been “paroled” into the U.S., or have certain specified documents allowing admission.
Additionally, there are certain narrow provisions for waivers of the application of the Executive Order, largely based upon the situations which were presented to the federal district courts at the time that the various injunctions against the previous Executive Order were issued.
Of greater interest to foreign nationals is the fact that, like the first Executive Order, it suspended the “Visa Interview Waiver Program” which is also known as the “drop box” program whereby an individual seeking renewal of a visa outside the U.S. can simply drop their papers off at a U.S. Consulate and their visa renewal will be made available to them in a few days without a face-to-face interview. The practical implications of this suspension are not presently known. One particular section of the immigration statutes seems to provide that the suspension will not apply to those persons whose previous visa had expired within 12 months of the application for a renewal. Anecdotal evidence from the various Consulates seems to indicate that a number of them continued to use the drop box program even in spite of its apparent suspension in the previous Executive Order.
That suspension did not seem to apply to the “Visa Waiver Program,” which is a wholly separate program for 38 foreign countries under which citizens of those countries do not require a visa to visit the U.S. as a tourist or to conduct certain types of business.
At the time of the issuance of this Alert, the government’s response to the temporary restraining order had not been announced.
We will provide updates to our clients and friends when they become available.