March 6, 2016. President Trump signed a new Executive Order (EO) today, restricting travel to the US for nationals of six, mainly Muslim, countries. The order replaces the earlier EO, which has been on hold due to ongoing litigation.
The new EO bans travel to the US for nationals of the 6 countries for 90 days, if they don't have a green card or an existing visa permitting them to enter the US.
The new order makes the following changes to the original plan.
Iraq has been removed from the list of affected countries, leaving Iran, Libya, Somalia, Sudan, Syria and Yemen. However, Iraqi nationals will need "thorough review" before any immigration benefit is granted. According to the EO "Such review shall include consideration of whether the applicant has connections with ISIS or other terrorist organizations or with territory that is or has been under the dominant influence of ISIS, as well as any other information bearing on whether the applicant may be a threat to commit acts of terrorism or otherwise threaten the national security or public safety of the United States."
Unlike the previous EO, which had immediate effect, the new EO takes effect on March 16, 2017.
Who is Excluded from the Ban?
The ban does not apply to
Are There Exceptions to the Ban?
The EO allows for consulates to grant visas in exceptional circumstances, where the foreign national can show "...undue hardship, and that his or her entry would not pose a threat to national security and would be in the national interest."
The list of circumstances warranting a waiver are:
The new EO suspends refugee applications for 120 days and caps the number of refugees at 50,000.
This is a very initial analysis of the new Executive Order, and new details and interpretations will emerge daily. Please contact Elaine Martin, immigration lawyer, with questions.
For more information, please see
DHS FAQ on new Executive Order
DHS Fact Sheet on new Executive Order
ACLU Planning Legal Challenge to new Executive Order
UPDATED January 30, 2017. Changes in italics
The situation is changing hourly, so please check back frequently as we update this alert.
What countries are affected by the ban?
The countries involved are: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. The Executive Order (EO) refers to "aliens", "foreign nationals" and "nationals", so the language is inconsistent. It may include dual nationals.
The EO also allows states that "the United States should not admit those who engage in acts of bigotry or hatred (including "honor" killings, other forms of violence against women, or the persecution of those who practice religions different from their own) or those who would oppress Americans of any race, gender, or sexual orientation." This means that the ban could extend beyond the 7 named countries, and is clearly aimed at people from Muslim countries.
What type of immigrants are affected by the ban?
The ban applies to anyone entering the US who meets the nationality requirements described above. It applies to refugees, asylum seekers, visitors, nonimmigrant visa holders and even permanent residents (green card holders). The ban excludes some diplomatic visas.
I thought green card holders were OK?
UPDATE 2/2/17: the White House announced that permanent residents were excluded from the ban. We don't know if immigration officers at the airport are following this guidance yet.
1/28/17: The EO applies to "immigrants", i.e. permanent residents (LPRs). However, after massive protests and complaints about this aspect of the ban, DHS issued a statement stating that LPRs could be allowed into the US. The statement did not remove the "immigrant" language from the ban, but stated that "...absent significant derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status will be a dispositive factor in our case-by-case determinations." In other words, LPRs may be admitted if the admitting officer at the airport feels that they are not a threat.
How long does the ban last?
The ban lasts for 90 days, starting from yesterday, January 27, 2017.
I am from one of those countries - can I travel outside the US?
We strongly recommend that you do not travel outside the US until further notice.
I have an application pending with USCIS. Will that be affected?
Unfortunately, pending applications will probably be placed on hold. The EO section that refers to the ban states that it "...suspend[s] entry into the United States...." (emphasis added). However, other sections refer to "...other benefit.." This could include nonimmigrant visa extensions, citizenship applications, etc. We are hearing rumors that some immigration officers have been told to stop working on applications involving nationals of the 7 countries (1/30/17)
Are there any exceptions to the ban?
The EO provides that the "Secretaries of State and Homeland Security may, on a case-by-case basis and when in the national interest, issue visas or other immigration benefits.." This waiver was applied to one of the first people affected by the ban, http://www.cnn.com/2017/01/28/politics/2-iraqis-file-lawsuit-after-being-detained-in-ny-due-to-travel-ban/index.html.
This is much more in the EO, referring to the suspension of refugee admissions for 120 days, suspension of the visa waiver interview program, etc. These will be covered in another blog posting in the next few days.
If you have any questions about this matter, please contact Elaine Martin, immigration lawyer.
The US Department of Homeland Security and State Departments jointly announced a tightening of the Visa Waiver Program (VWP) today, January 21, 2016. The announcement follows a law passed by Congress in December to tighten the Visa-Waiver Program. The law was aimed at preventing Europeans who have joined Islamic State and other terrorist groups from entering the U.S.
The following people will no longer be eligible to enter the US without a visa:
The above individuals can still enter the US, but only if they have been granted a visa by a US consulate, following an application and interview process.
Under the new law, the Secretary of Homeland Security may waive these restrictions if he determines that such a waiver is in the law enforcement or national security interests of the United States. Such waivers will be granted only on a case-by-case basis. Example of qualifying exceptions include travel for humanitarian work, journalism, and business reasons.
DHS Press Release
Elaine Martin has been practising US and global immigration law since 1997. She is an immigrant herself (from Ireland), so has a special understanding of the legal and emotional challenges involved in relocating to a new country.