Further Updates on the U.S. Entry Ban

United States

On Friday, January 27, 2017, U.S. President Donald J. Trump signed an executive order that prohibits foreign nationals from Iran, Iraq, Libya, Somalia, Sudan, Syria or Yemen from entering the United States for 90 days.  The order was put in place immediately and resulted in confusion at U.S. ports of entry and abroad. The U.S. government has since provided further guidance on implementation of the executive order, including new guidance for dual nationals, but the current situation remains fluid.

The following is Fragomen's latest update on the status of the U.S. entry ban.  Because this guidance is subject to frequent change, please contact your designated Fragomen professional before traveling to or departing from the United States.

For purposes of the following, the term "country of concern" refers to Iran, Iraq, Libya, Somalia, Sudan, Syria or Yemen.  Unless otherwise indicated, the term "dual national" refers to an individual who is a national of a country of concern and another foreign country. 

Who is Subject to the Ban?

U.S. Customs and Border protection has clarified that the ban will be imposed on those who present a passport from one of the seven countries of concern, with the exception of lawful permanent residents, as discussed below. 

Dual nationals are subject to the executive order but should not be prohibited from entering the United States if they present a passport from a non-banned country.  However, because of ambiguities in how the Department of State is treating the ban, dual nationals who have in the past represented themselves to be a citizen of one of the seven countries – including presenting a passport in connection with a benefit or a visa application – may want to postpone travel until there is further clarity.

Lawful Permanent Residents Who Are Nationals of a Country of Concern

Lawful permanent residents (LPRs) who are nationals of a country of concern are not subject to the ban unless the U.S. government deems that they pose a national security threat.  Initially, the U.S. government prohibited the entry of all LPRs from a country of concern, but after a written statement from Homeland Security Secretary John Kelly, this prohibition will not apply unless the U.S. government has significant derogatory security information pertaining to an LPR.    

As such, LPRs may travel to the United States, but should expect close and lengthy questioning before they are admitted to the United States.  This includes secondary inspection with searches of phones, laptops and other electronic devices.  LPRs who are nationals of a country of concern should carry a copy of Secretary Kelly's statement when they travel internationally.  

Nonimmigrants Who Are Nationals of a Country of Concern

Nonimmigrants who are nationals only of a country of concern will not be issued a U.S. nonimmigrant visa or be permitted to enter the United States for the duration of the ban. Though the executive order allows for a discretionary waiver of the entry ban in the national interest, this is not expected to be available except in extraordinary circumstances. In addition, the government has not yet provided a process for foreign nationals to follow in seeking a waiver.

Other Lawful Permanent Residents and Nonimmigrants

LPRs and nonimmigrants who are not from a country of concern but have traveled to one of the seven countries should expect to be questioned closely when entering the United States. All LPRs and nonimmigrants should expect heightened entry procedures when returning to the United States in the current environment.

U.S. Citizens

U.S. citizens are not subject to the entry ban, including those with dual nationality in the United States and a country of concern.  However, U.S. citizens who have traveled to Iran, Iraq, Libya, Somalia, Sudan, Syria or Yemen should expect to be questioned closely when reentering the United States.

Impact of Entry Ban on Adjudications

There are reports that USCIS adjudicators have been told to suspend work on cases filed by or on behalf of foreign nationals subject to the entry ban.  Though information is limited, the suspension could affect the processing of nonimmigrant and immigrant petitions, applications for employment-based adjustment of status, employment authorization documents and other employment-based applications and petitions.  The executive order also suspends a program that exempted certain foreign nationals from the need to be interviewed at a U.S. consulate when renewing a visa, meaning that there may be longer waits for visa appointments.  As such, employers and foreign nationals should expect lengthy delays.

Duration and Scope of the Entry Ban

Currently, the executive order suspends the entry of foreign nationals from the countries of concern for 90 days, or through April 27, 2017.  The order could be extended beyond this date.

While the ban is in effect, the U.S. government will conduct a 60-day review of worldwide security policies.  Nationals of countries that do not cooperate in the review could be added to the list of travelers subject to the entry ban.

This alert is for informational purposes only. If you have any questions about the executive order, please contact the immigration professional with whom you work at Fragomen.

© 2017 Fragomen, Del Rey, Bernsen & Loewy, LLP, Fragomen Global LLP and affiliates. All Rights Reserved.