Issued on January 27, 2017, the most recent Executive Order – titled ““Protecting the Nation from Foreign Terrorist Entry into the United States” though it doesn’t really do anything remotely like that – is the latest in the initial series of three Trump orders impacting immigration. This order is primarily a travel ban and clearly targeted as Muslims.
This one has the following provisions:
For 90 days from the January 27, 2017 date of the order, nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria, Yemen on any temporary visa, immigrant visa, advance parole, or green card are barred from entering the US. Although framed as a 90-day bar to entry, the order elsewhere notes that Ban does not expire if those countries refuse to accept repatriation of removed (deported) nationals of those countries from US. Other countries may be added.
For 120 days, the Refugee Admissions Program will be temporarily suspended – supposedly while DHS and other agencies “review screening procedures to ensure refugees admitted in the future do not pose a security risk to citizens of the United States.” It is unclear in what way current stringent screening procedures are insufficient, or how there are differences on the way the various agencies implement them now. There is no acknowledgement of the very significant two-year screening process currently in place for refugees, only an insistence that they now undergo an as-yet undefined “extreme vetting” process.
The annual quota of refugee admissions is cut by more than half under this EO – to 50,000 from the 110,000 originally allotted for 2017.
The Secretary of State is instructed to review all non-immigrant visa reciprocity agreements “to ensure that they are, with respect to each visa classification, truly reciprocal.” Essentially, to make sure other governments which have entered into reciprocity agreements with the US with regard to certain visa programs are offering US nationals similar benefits under their own visa scheme as are offered to nationals of their own countries by the US. This likely applies most directly to Treaties of Trade and Navigation which give rise to the E-1 Treaty Trader and E-2 Treaty Investor Categories, and may also apply to the TN category under NAFTA, the Australian E-3 category, and the agreements for H-1B cap count set-asides for nationals of Chile and Singapore.
The Department of State is directed to “restrict the Visa Interview Waiver Program and require additional non-immigrant visa applicants to undergo an in-¬person interview.” There’s been some confusion as to whether this impacts the Visa Waiver Program (what many call “ESTA”) allowing nationals of 38 low-fraud countries to enter the US as visitors without first applying for a formal B-1/B-2 non-immigrant visitor visa at a US consular post abroad. This EO doesn’t restrict the Visa Waiver Program. Rather, the “interview waiver program” refers to the program allowing individuals who already have certain non-immigrant visa stamps in their passports, and who are applying for a renewal or replacement visa in these categories to avoid re-interview if certain requirements are met – a much smaller group of people.
The EO mandates reporting by DHS on individuals charged with Terrorism-based offenses or domestic violence every 180 days.
Like the previous orders, this one relies on Section 212(f) of the Immigration and Nationality Act (INA) of 1952, which gives the President a very general and undefined “authority to suspend the entry of any class of aliens the president deems detrimental to the national interest.”
As with the other orders whether this directive is in fact constitutional is a separate question that we expect to be heavily litigated, and so decided by the courts – this EO perhaps even more so than the others. Again, we suggest checking our blog page for further developments.