Update on Immigration Executive Order and Dual Nationals

Written by Alexander J. Segal on

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Overview

As of January 31, 2017, the application of President Donald Trump's Executive Order (EO) titled “Protecting the Nation From Foreign Terrorist Entry Into the United States” to dual nationals who of one of the affected countries and an unaffected country remains unclear. However, there have been several updates on the issue that I thought would be worth sharing.

Before starting, it is important to note that U.S. citizens or noncitizen nationals [see article] who also have the nationality of one of the affected countries are unaffected by the EO. This is because U.S. citizens are not subject to the immigration laws.

The American Immigration Lawyers Association (AILA) posted several updates on the issue earlier today (see AILA Doc. No. 1712670, Jan. 31, 2017 Updates). AILA notes that guidance issued by the Department of Homeland Security (DHS) on January 29 took the position that an individual traveling on a passport from Iraq, Syria, Sudan, Iran, Somalia, Libya, or Yemen would be temporarily suspended from the United States [link]. AILA stated that the DHS informed it that the EO does apply to dual citizens who hold passports from a designated country as well as a non-designated country. However, the DHS told AILA that the United States Customs and Border Protection (CBP) would be processing individuals based on how they present themselves for primary inspection. AILA states that members (immigration attorneys) have reported that individuals are being processed based on which passport they present.

CBP Guidance

On the afternoon of January 31, 2017, the CBP released a question and answer document on the enforcement of the EO titled “Protecting the Nation from Foreign Terrorist Entry into the United States” [link]. The new CBP guidance seems to affirm the news from AILA. The CBP addresses the question of whether the EO applies to dual nationals. The CBP explains that it does, but that dual nationals will be treated according to the travel document they present. The CBP uses the example of a dual national of one of the seven countries and Canada. If that individual presents a Canadian passport, he or she would be processed for entry as a national of Canada. However, if the individual presents the passport of one of the seven countries specified in the EO, he or she would be treated as a national of that country.

State Department Guidance

The United States Embassy and Consulates in the United Kingdom has stated that a dual national of the United Kingdom and one of the seven countries designated by the EO is exempt from the EO so long as he or she is traveling on a valid United Kingdom passport and U.S. visa [link].

The United States Embassy Tel Aviv Consular Section stated that travelers with a valid visa in their Israeli passport may travel to the United States even if they are also a national of or were born in one of the seven countries specified in the EO. It added that the Embassy in Tel Aviv will continue to process visa applications and issue visas to eligible applicants who apply with an Israel passport even if they were born in or are the dual nationals of one of the seven countries specified in the EO [link].

The Prime Minister of Canada, Justin Trudeau, stated on his Twitter account that the United States National Security Advisor, Michael Flynn, had confirmed that holders of Canadian passports would not be affected by the EO even if they are the nationals of one of the seven specified countries. However, it is important to note that this guidance does not come directly from the U.S. Government [link]. However, it does seem to be in line with the CBP's position.

Where Do We Stand Now?

Many aspects of the situation regarding dual nationals remain unclear, but the government may be moving toward a less onerous application of the EO for dual nationals traveling on a passport of a country not specified in the EO. The CBP has clearly taken the position that an individual seeking entry with a passport from a country not specified in the EO will be treated as a national of that country. However, if the dual national is traveling on the passport of an affected country, he or she will be treated as a national of the affected country. Similar guidance has come from officials of the Department of State (DOS) operating in the United Kingdom and Israel. However, only the United States Embassy in Tel Aviv specified that it would continue processing visa applications for those born in or who are nationals of a country specified in the EO, but who are seeking a visa with an Israeli passport.

There has been no guidance issued with regard to dual nationals who are already in the United States in lawful nonimmigrant status. However, under longstanding administrative precedent, the operative nationality of a nonimmigrant present in the United States is the nationality that he or she claimed upon entering the United States as a nonimmigrant. We discuss this in the E-visa context [see article] and temporary protected status (TPS) contexts [see article]. An individual who is the national of one of the affected countries should not make any assumptions about his or her situation without first consulting with an experienced immigration attorney for the most up-to-date information and guidance on his or her specific situation.

AILA stated that it is “seeking more concrete guidance for dual nationals who hold two passports.” Here at myattorneyusa.com, we will update the site as soon as there is any more definitive information on the issue from the DHS and DOS.