On January 27, 2017, President Trump signed an Executive Order titled "Protecting the Nation From Foreign Terrorist Entry Into the United States." In addition to the suspension of refugee admissions from all countries for 120 days, the Executive Order suspends entry into the United States of individuals from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen for 90 days. The 90-day ban on admissions to the United States by individuals from these countries may or may not be extended beyond 90 days after the review of information by the Secretaries of the Department of Homeland Security (DHS) and the Department of State.

Since the Executive Order was issued on January 27, numerous questions about who the travel restrictions affect, how long the entry suspensions will last and what kind of waivers are available have caused confusion and remain unanswered. Over the weekend, the Trump Administration and DHS have issued statements regarding who specifically would be affected by the Executive Order. And, some U.S. federal courts have issued orders temporarily halting application of certain parts of the Executive Order. More statements about application of the Executive Order are expected in the coming days, which may further clarify the application of the Executive Order.

With the proviso that statements and interpretations of the Executive Order (EO) are still being issued, the following is a summary of the current applicability of the EO:

  • The EO does not apply to United States citizens originally from one of the seven listed countries. Accordingly, such individuals will be permitted entry into the U.S. after travel abroad. However, a White House spokesperson stated that such persons may be questioned by U.S. Customs and Border Patrol (CBP) agents when re-entering the U.S.
  • The language of the EO refers to both nonimmigrants (individuals entering under ESTA and with visas, such as F-1, H-1B, L-1, etc.) and immigrants, meaning Legal Permanent Residents ("green card" holders). However, on January 29, 2017, DHS issued a statement that U.S. green card holders would not be barred from entering the U.S., "absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare."
  • The EO also applies, according to statements from DHS, to individuals who have dual nationality with one of the seven listed countries and a country not on the list. The suspension on travel will be applied to dual nationals if they possess a current passport from the restricted country, have been denied ESTA based on nationality in a restricted country or have otherwise identified themselves as a national of a restricted country.
  • The EO allows the Secretaries of DHS and the Department of State to issue visas or grant other immigration benefits to nationals of these countries on a "case-by-case" basis and when "in the national interest."
  • The EO suspends the U.S. Refugee Admissions Program (USRAP) for 120 days and the admission of refugees from Syria indefinitely.
  • The EO suspends the Visa Interview Waiver Program indefinitely for all countries. This program allows certain visa applicants to apply for a visa by drop-box or mail rather than an in-person interview. Visa applicants who were planning to utilize this program should therefore expect additional delays in obtaining their visas.

The guidance above should be taken as a snapshot of the situation at the present time. As an example of the confusion engendered by this EO, on January 29 and 30, the U.S. Embassy in the United Kingdom, the White House and the United Kingdom government have been issuing contradictory statements as to whether the suspension on travel applies to UK citizens who are dual nationals with a restricted country.

Given this fluid situation, individuals who believe they may be affected by the EO and are planning international travel are strongly advised to speak with their Pryor Cashman immigration attorney before making plans to leave the United States.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.