FAQ: Trump’s New Travel Ban
1. What is the Executive Order?
On March 6, 2017, President Donald J. Trump signed into law an Executive Order, “Protecting the Nation from Foreign Terrorist Entry into the United States.” Section 3(c) of the Order blocks entry into the U.S. of foreign nationals from six affected countries — Iran, Libya, Somalia, Sudan, Syria, and Yemen — who:
- are outside the United States on the effective date of the Executive Order;
- do not currently have a valid visa; and
- did not have a valid visa on January 27, 2017.
This travel ban is alleged to last 90 days from the date of implementation. However, Section 3(e) suggests that — for countries unwilling or unable to provide satisfactory information regarding its nationals seeking entry into the United States — the travel ban will be indefinite. Because the United States and Iran lack diplomatic relations, it is highly unlikely that Iran would provide the information necessary to satisfy the standards of the Executive Order. As a result, it is expected that the Order’s travel ban will prove indefinite for Iranian persons.
The effective date of the new Executive Order is March 16, 2017. The Order’s provisions will not take effect or otherwise be implemented until this date.
2. What is the status of the previous Executive Order (EO 13769)?
The original Executive Order has been revoked in its entirety and replaced by the new Executive Order.
3. What changes have been made to the original Executive Order?
Some crucial changes have been made in an attempt to avoid future legal challenge. For instance, the new Executive Order excepts legal permanent residents (LPRs); dual nationals when traveling on a passport issued by a non-designated country; individuals granted asylum or refugee status in the United States prior to the effective date of the Executive Order; foreign nationals admitted to the U.S. after the effective date of the Executive Order; and individuals with a document that is valid on the effective date of the Executive Order or any date thereafter permitting travel to the United States; amongst others.
The new Executive Order also clarifies that the United States Department of Homeland Security and the Department of State have discretionary authority, on a case-by-case basis, to issue visas or permit the entry into the United States of foreign nationals from the six affected countries when the foreign national (1) shows that denial of entry would cause undue hardship; (2) that the national’s entry would not pose a threat to U.S. national security; and (3) that the national’s entry would be in the U.S. national interest.
The new Executive Order exempts Iraq, which was formerly an affected country under the original Executive Order, from the 90-day travel ban. According to the White House’s Fact Sheet, this exception is the result of negotiations between the Government of Iraq and the U.S. Department of State under which Iraq agreed to increase cooperation with the U.S. Government regarding the vetting of its citizens applying for a visa for travel to the United States.
4. Who does the new Executive Order apply to?
The Executive Order applies to foreign nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen who are not legal permanent residents, are not in possession of a valid visa at the date of this Order, and who were not in possession of a valid visa on January 27, 2017. Persons seeking status in the United States who are nationals of one of the six affected countries will be affected by the Order.
Previously, the original Executive Order had applied to U.S. legal permanent residents (LPRs), those holding a valid immigrant or non-immigrant visa, those seeking an immigrant or non-immigrant visa, and individuals with refugee applications approved by USCIS as part of the U.S. Refugee Admissions Program, provided that such persons are nationals of the following countries: Iran, Iraq, Libya, Somalia, Syria, and Yemen. The new Executive Order has sought to avoid legal challenge by limiting the reach of persons affected by the Executive Order, in particular, those who could claim certain U.S. constitutional rights.
5. Does the new Executive Order affect legal permanent residents or those holding a valid immigrant or non-immigrant visa for travel to the United States?
No, unlike the original Executive Order, the new Executive Order does not affect the travel of legal permanent residents (LPRs) or those holding a valid immigrant or non-immigrant visa (who are nationals of one of the six affected countries). The new Executive Order has been deliberately revised in such a manner as to exempt such categories of people from its reach. According to the White House’s Frequently Asked Questions (FAQs), this signifies that legal permanent residents should be able to leave the United States and return without incident. We will monitor the situation to ensure that the new Executive Order is being implemented consistent with its terms.
6. Following issuance of the original Executive Order, the U.S. State Department provisionally revoked tens of thousands of visas. Can we expect similar action now?
No. The new Executive Order does not impose travel restrictions either on those holding a valid immigrant or non-immigrant visa at the time of the effective date of the Order or on those who held a valid visa for travel to the United States on January 27, 2017. The Executive Order was revised in such a manner as to avoid the constitutional issues that arise from restricting the travel of those who have been resident in the United States and hold an immigrant or non-immigrant visa.
The White House’s FAQs state that “[v]isas will not be revoked solely as a result of the Executive Order,” but also note that the U.S. Department of State “has broad authority under Section 221(i) of the Immigration and Nationality Act to revoke visas.” If your visa is revoked, or you hear about others who have had their visas revoked, following issuance of the revised Executive Order, please contact us immediately.
7. What should I do if I need to renew my visa or change my visa status?
It is unclear at this time. The White House’s FAQs, for instance, state that international students, exchange visitors, and their dependents from the six affected countries who are in possession of valid visas are not affected by the new Executive Order. Such persons can continue to travel to and from the United States consistent with the terms of their valid visas. However, the White House’s FAQs further note that, upon expiration of their visa, such persons must obtain new valid visas to travel to the United States.
Because the revised Order is likely to impose a permanent ban on travel to the United States from Iran, persons seeking to renew or change their visa status could run into significant hurdles. Most likely, such persons will need to procure a waiver from the U.S. Government in order to renew their visa for travel to the United States. The revised Order does provide examples as to when waivers to the travel ban could be issued, including, for example, in cases where a foreign nationals “has previously been admitted to the United States for a continuous period of work, study, or other long-term activity, is outside the United States on the effective date of this Order, seeks to reenter the United States to resume that activity, and the denial of reentry during the suspension period would impair that activity.” We will monitor the situation to see how the waiver provision is being utilized to assist those seeking to renew or change their visa status in furtherance of activities being undertaken in the United States (e.g., study at U.S. universities).
8. Will there be legal challenges to the new Executive Order?
Yes. While the new Executive Order has been revised so as to avoid legal challenge — for example, by excepting from its travel ban certain individuals who had claim to U.S. constitutional rights, such as legal permanent residents and those holding valid immigrant or non-immigrant visas — there remain important constitutional and statutory disputes at stake. We can expect a continuance of current legal challenges and/or new legal challenges to the revised Executive Order.
9. What is the status of NIAC’s legal challenge to the Executive Order?
The lawsuit remains active. We are currently speaking with our legal team about steps ahead in light of the revised Executive Order, and we will update you as to the lawsuit’s status and provide further information as it becomes available.
The lawsuit was filed by Cyrus Mehri, partner of Washington, DC-based firm Mehri & Skalet, PLLC; the Lawyers’ Committee for Civil Rights Under Law; and pro bono counsel, Arnold & Porter Kaye Scholer (“APKS”), on behalf of the Pars Equality Center, the Iranian American Bar Association, the National Iranian American Council, and the Public Affairs Alliance of Iranian Americans.
10. How can I take action?
There are many ways for you to get involved so that we can win this fight.
11. What is NIAC going to be doing to reverse the new Executive Order?
We will continue to execute a three-pronged strategy to block and reverse Trump’s new Executive Order:
- Congressional action.
Congress can pass legislation to revoke the Executive Order; revoke the President’s authorities to issue or implement such an Order; and block funding for implementation of the Order. NIAC Action is at the frontlines organizing constituents to convince lawmakers to push forward such legislation.
- Legal action.
In concert with other Iranian-American organizations, NIAC has filed a lawsuit challenging the Executive Order on constitutional and statutory grounds. You can find legal documents relating to the lawsuit here.
- Public pressure.
We are mobilizing both our membership and others galvanized by this Order. We are also making certain that our message is in the media to ensure that the impact of this discriminatory action on Iranians and Iranian Americans alike is understood by the broader American public. These actions will be critical to winning public opinion, channeling that opinion to fight the Executive Order, and bolstering our efforts.
DISCLAIMER: This document is not intended as legal advice. The answers provided are based on extensive research and NIAC’s understanding at the time of release. If you have a legal question specific to your case, it is best to consult with a practicing immigration attorney.