President Donald J. Trump has signed an executive order that reportedly suspends the entry of foreign nationals from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen to the United States for a period of 90 days, or through April 27, 2017.
The order also reportedly suspends a worldwide program that exempted certain visa renewal applicants from consular interviews.
Although the order has been signed and is in effect, the Administration has not yet released the final signed text. The following guidance is based on Fragomen’s analysis of a draft. The final published order may differ, and Fragomen will provide updates as necessary when it is released.
Who Is Subject to the Entry Ban?
Though the language of the draft executive order was unclear, it appears that the entry ban applies to nationals of the seven listed countries, as well as those with dual nationality in one of these countries and another foreign country. The United States typically looks to the laws of the foreign nation in order to determine whether an individual is a national of that country. Thus, if a person's country of birth considers him or her to be a national, the entry ban may apply.
Individuals who are not citizens of one of these countries but who are residents of or have other strong ties to any of these countries may also be barred from entering the United States, though the language of the draft order was unclear on this point.
The ban applies to "immigrants and nonimmigrants," which means that it covers those with a temporary visa (e.g., B-1, H-1B and L-1), applicants for adjustment of status with advance parole, foreign nationals holding a U.S. immigrant visa and U.S. lawful permanent residents. We also anticipate that applications for adjustment of status on behalf of nationals of these countries will be held in abeyance by USCIS until the ban is lifted.
The ban is expected to be in place for at least 90 days after the order is signed. However, it could be extended and could be expanded to additional foreign countries.
The draft indicated that the Departments of Homeland Security and State may, in the national interest and on a case-by-case basis, issue visas or other immigration benefits to foreign nationals otherwise subject to the ban, but the process for seeking an exception is not yet known.
Widespread Government Processing Delays Expected
In addition to the entry ban, the executive order reportedly suspends a visa interview waiver program that was in place at U.S. consulates worldwide. The waiver exempted some visa renewal applicants from an in-person consular interview. The suspension of the interview waiver applies to all U.S. visa applicants regardless of country of nationality or citizenship and means that wait times for visa interviews are likely to increase significantly. Only in rare cases, such as visas for foreign diplomats, may the State Department exempt an applicant from the personal interview requirement.
The order also calls for the development of potentially expansive changes to screening processes that would apply to all immigration programs. Details are expected in forthcoming communications from the Administration.
Also, due to a federal government hiring freeze, visa applicants, as well as those submitting immigration petitions and applications to U.S. Citizenship and Immigration Services and the U.S. Department of Labor, should expect processing slowdowns.
What The Entry Ban Means for Employers and Foreign Nationals
Organisations should work with their Fragomen professionals to identify and determine whether the company wishes to notify employees who may be subject to the entry ban. This includes foreign nationals currently in the United States, as well as overseas employees who may have been planning travel to the United States. Employers should also be aware that travel delays are likely for foreign employees who are not subject to the entry ban but who are applying for U.S. visas.
Foreign nationals subject to the ban must be aware of the following important travel considerations:
Those in the United States as nonimmigrants, adjustment applicants or lawful permanent residents should avoid international travel for the duration of the ban. Those who depart the United States should expect to be denied reentry while the ban is in effect.
Those who are in transit to the United States when the ban takes effect could be refused permission to board a flight to the United States or refused admission at a U.S. port of entry.
Those planning future trips to the United States should be prepared for the possibility of an extension of the travel ban beyond April 27, 2017, and a resulting delay in their travel.
USCIS has determined that, next month, it will only accept employment-based adjustment of status applications from foreign nationals with a priority date that is current for final action under the State Department’s February Visa Bulletin.
Employment-Based Priority Date Cut-offs for February 2017
To be eligible to file an employment-based adjustment application in February, employer-sponsored foreign nationals must have a priority date that is earlier than the date listed below for their preference category and country.