Update on Enforcement of Trump Executive Order (Jan. 31, 2017)

Introduction

On January 27, 2017, President Donald Trump issued an Executive Order (EO) titled “Protecting the Nation from Foreign Terrorist Entry into the United States” [PDF version]. The hasty implementation of the EO and the ensuing aftermath created much controversy and confusion regarding the status of affected individuals. Fortunately, both the Department of Homeland Security (DHS) and the Department of State (DOS) have issued statements clarifying key aspects of the EO. In this article, we will examine the updates from the DHS and DOS and what these updates mean going forward.

Department of State Update on Implementation of Executive Order

The DOS issued an update regarding the EO on the day it was issued, January 27, 2017 [PDF version]. The DOS stated that visa issuance for nationals of the following countries has been suspended immediately:

Iraq;
Iran;
Libya;
Somalia;
Sudan;
Syria; and
 Yemen.

The DOS instructs citizens of those countries abroad to not schedule visa appointments or pay any visa fees “at this time.” Furthermore, the DOS instructs affected individuals to not attend and already-scheduled appointment.

The DOS stated that dual nationals of the United Kingdom and one of the countries referenced in the EO are exempt from the EO when traveling on a valid United Kingdom passport and U.S. visa.

Situation Involving Dual Nationals under the Executive Order

A United States citizen or national who is also the national of one of the countries is not subject to the EO. This is because U.S. citizens and nationals are not subject to the immigration laws.

The situation continues to be ambiguous with regard to dual nationals of one of the countries and an additional country. According to a CNN report, the International Air Transport Association told airlines that dual nationals traveling with a valid passport issued by a country other than one of the seven specified countries in the EO will not be barred from entry into the United States.¹ However, the International Air Transport Association is not a U.S. immigration agency, and its interpretation cannot be taken to be authoritative guidance. The DOS statement explicitly stated that dual nationals traveling on a United Kingdom passport and U.S. visa would be unaffected. There have been inconsistent reports as to the current policy. It appears unclear as to whether dual nationals may be issued new visas at this time if they are outside one of the seven countries. Affected individuals should consult with an experienced immigration attorney for the most up-to-date guidance.

Situation Involving Lawful Permanent Residents Under the Executive Order

The EO was initially being interpreted as to bar entry to lawful permanent residents (LPRs) who were nationals of one of the affected countries. However, after several Federal Courts stayed the enforcement of the EO against LPRs, the Secretary of Homeland Security, John Kelly, deemed that the entry of LPRs was in the national interest [PDF version]. Secretary Kelly stated that absent “derogatory information indicating a serious threat to public in safety,” LPR status “will be a dispositive factor in our case-by-case determinations.” In a subsequent Fact Sheet [PDF version], the DHS stated the following with regard to LPRs:

Importantly, however, Lawful Permanent Residents of the United States traveling on a valid I-551 will be allowed to board U.S. bound aircraft and will be assessed for exceptions at arrival ports of entry, as appropriate. The entry of these individuals, subject to national security checks, is in the national interest. Therefore, we expect swift entry for these individuals.

It is important to note that the DHS guidance does not explicitly say that the EO does not apply to LPRs. Rather, the DHS position is that allowing LPRs from affected countries to enter is in the national interest. LPRs may still face scrutiny upon entry, but the DHS appears to be committed to moving toward “swift entry” for affected LPRs.

An individual who wants to maintain his or her LPR status should not sign the Form I-407, Abandonment of Lawful Permanent Resident Status, if offered the opportunity or asked to do so. In such a situation, the individual should consult with an experienced immigration attorney as soon as possible before taking any action. It is important to note for any individuals who did sign the Form I-407 that signing the Form I-407 does not necessarily result in the automatic loss of LPR status [see section]. If an individual signed the Form I-407 and did not intend to relinquish his or her LPR status, he or she should ask to consult with an immigration attorney immediately.

The DHS Fact Sheet explains that the DHS retains the ability to issues visas to or allow the entry of affected nationals on a case-by-case basis. The DHS is using this authority liberally for the swift entry of LPRs. Other individuals who may be affected should consult with an experienced immigration attorney for guidance.

Conclusion

The EO appears to have been issued without adequate foresight and planning, and has thus created much confusion among affected individuals, attorneys, and government officials alike. Furthermore, there is pending litigation regarding around the country regarding the EO and cases in which individuals were detained after being in transit when the order went into effect. Any individuals who may be affected by the EO should consult with an experienced immigration attorney regarding any questions. Nationals of those countries who are in the United States and in status should consult with an experienced immigration attorney before considering leaving the United States for any period of time.

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1. Merica, Dan, “How Trump's travel ban affects green card holders and dual citizens,” cnn.com, (Jan. 29, 2017)