FAQ: Trump’s Travel Ban and You (Updated 2/14/17)

This FAQ is in regards to the first Executive Order that was signed on January 27, 2017. A new FAQ in response to Trump’s Executive Order that was signed on March 6, 2017 can be found here.

Implementation of President Trump’s Executive Order has been chaotic. We have received conflicting reports regarding its scope and application. The answers below, which we will seek to keep up-to-date, are based on our best understanding of the situation as it stands. If you have a legal question specific to your case, it is best to consult with a practicing immigration attorney.

  1. What is the Executive Order?
  2. Who does the Executive Order apply to?
  3. I have heard that a U.S. federal court put a “hold” on continued implementation of the Executive Order.  Is the Executive Order being implemented right now?
  4. Should U.S. visa holders seek to immediately return to the U.S. as a result of the TRO?
  5. I have heard that U.S. legal permanent residents (i.e., green card holders) are being permitted entry into the United States. Is this true?
  6. I have heard that NIAC has filed a lawsuit challenging the Executive Order. Is that true?
  7. Does the Executive Order restrict the travel of foreign dual nationals (e.g., a French-Iranian who holds a French passport and an Iranian passport)?
  8. What are the next steps in the legal challenge to the Executive Order?  For how long can we expect the courts to restrain the Government from implementing the Executive Order?
  9. I have heard that President Trump plans to issue a new Executive order to preempt pending legal challenges to the travel ban. Is this true?
  10. Are visas being revoked for U.S. visa holders who have not entered the U.S. yet?
  11. Are visas being revoked for current U.S. visa holders presently within the United States?
  12. What should someone do if they need to renew their visa or change their visa status?
  13. Will USCIS automatically deny my visa renewal or status change because I am from one of the seven affected countries?
  14. Should U.S.-Iran dual citizens be concerned about flying to Iran and returning to the U.S. as a result of the Executive Order?
  15. How can I take action?
  16. What is NIAC doing to reverse the order?

 

  1. What is the Executive Order?

On January 27, 2017, President Donald J. Trump signed into law Executive Order 13769, “Protecting the Nation from Foreign Terrorist Entry into the United States.” Section 3(c) of this Order blocked the entry into the United States of aliens from seven affected countries: Iran, Iraq, Libya, Somalia, Syria, and Yemen. The 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.

  1. Who does the Executive Order apply to?

Implementation of the Executive Order is currently being blocked by a nationwide temporary restraining order (TRO) issued by the U.S. District Court for the Western District of Washington. However, the Executive Order applies 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.  Persons who are seeking status in the United States and are nationals of the affected countries will also be affected by the Order. Further, it is important to note that while the order applies to LPRs, the Secretary of Homeland Security has indicated that the admission of LPRs into the United States is in the national security interest of the United States, absent evidence indicating that an individual is a security threat.

  1. I have heard that a U.S. federal court put a “hold” on continued implementation of the Executive Order.  Is the Executive Order being implemented right now?

No. On February 3, the U.S. District Court for the Western District of Washington issued a TRO, which barred implementation of the Executive Order — including the travel ban — on a nationwide basis. As a result, U.S. legal permanent residents; those holding a valid immigrant or non-immigrant visa; and individuals with refugee applications approved by USCIS as part of the U.S. Refugee Admissions Program, from the affected countries, should be able to enter the United States.  The TRO will remain in effect pending further notice from the Court. The case is State of Washington, et al. v. Trump, No. 17-35105, and can be found here.

On February 9, the United States Courts of Appeals for the Ninth Circuit denied the Government’s motion for an emergency stay of the TRO.  As a result, the TRO remains in effect until further notice.  It is unclear if the Government will seek to appeal this decision. If not, then the case will likely return to the U.S. District Court for briefing on the States’ motion for a preliminary injunction of the Executive Order. There is a long road ahead before the parties start deliberating on the merits of the case.

In short, the Executive Order is “on hold”. The Government is restrained from implementing its terms until the District Court provides notice that it can do so. This includes, as the Department of Homeland Security noted in its public statement, “actions to suspend passenger system rules that flag travelers for operational action subject to the Executive Order.” It is expected that the State of Washington, et al., will seek to extend the hold on the Executive Order indefinitely until the Court can issue a decision on the merits.

Despite the court order, visa interviews for nationals of the seven targeted countries appear to be on hold. According to the Department of State, the National Visa Center “cancelled all scheduled immigrant visa interviews” for nationals of Syria, Iraq, Iran, Libya, Somalia, Sudan and Yemen that were to be held in February 2017, and indicated that applicants will be contacted to reschedule their interviews. According to the State Department, visas will continue to be processed “up to the point of the interview.” We have received several reports from Iranians who have had their visa interviews canceled, including at the U.S. embassy in Yerevan, Armenia and Dubai, United Arab Emirates. It is unclear when the National Visa Center will enable applicants to reschedule their interviews. If you or a friend or family member has had an interview canceled or has succeeded in obtaining an interview since January 27, please contact us.

  1. Should U.S. visa holders seek to immediately return to the U.S. as a result of the TRO?

We are unable to satisfactorily answer this question, as it will involve a personal weighing of the situation. However, the TRO does provide a clear window in which those holding valid immigrant or non-immigrant visas should be able to enter the United States without issue — a window that could close at any time. The U.S. District Court for the Western District of Washington can revoke the TRO at any given time, though, so affected individuals should be cognizant of the court’s schedule. Further, there is a chance that the Trump administration will issue a new Executive Order that could create further chaos for travelers seeking to enter the country.

  1. I have heard that U.S. legal permanent residents (i.e., green card holders) are being permitted entry into the United States.  Is this true?

Yes.  The Executive Order provides the Secretaries of State and Homeland Security with the authority to issue visas or other immigration benefits, on a case-by-case basis, when doing so is in the national interest. On January 29, Secretary of Homeland Security John Kelly announced that the entry of legal permanent residents into the United States was in the U.S.’s national interest. As a result, legal permanent residents should now be able to enter into the United States “absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare.” (Moreover, on February 1, the White House Counsel to the President Donald F. McGahn II issued a memorandum to U.S. federal agencies, stating that Sections 3(c) and 3(e) of the Executive Order do not apply to legal permanent residents. However, there is dispute as to whether the White House Counsel has authorization to make such a determination absent revision to the Executive Order itself.) The Department of Homeland Security has not yet provided indication as to the process which legal permanent residents who are nationals of the affected countries will be subject upon entry into the United States. However, some reports indicate that LPRs permitted entry into the U.S. have been placed under brief detention, at which time U.S. authorities reviewed their phone and social media accounts. If you or someone you know are legal permanent residents and are detained or in the process of removal pursuant to the Executive Order, please contact us.

  1. I have heard that NIAC has filed a lawsuit challenging the Executive Order.  Is that true?

Yes. NIAC, acting in concert with other Iranian-American organizations, filed a lawsuit in the United States District for the District of Columbia, challenging the Executive Order on constitutional and statutory grounds. You can find legal documents relevant to this case here. We will be providing regular updates as to the status of the case.  

  1. Does the Executive Order restrict the travel of foreign dual nationals (e.g., a French-Iranian who holds a French passport and an Iranian passport)?

Yes. However, the Department of Homeland Security has stated that it would not restrict the travel of dual citizens with passports from a country other than the seven affected countries. For instance, if a French-Iranian dual citizen travels on his or her French passport to the United States, DHS will grant such person entry into the United States. If the same person, though, travels on his or her Iranian passport, DHS will likely deny such person entry into the United States.  

  1. What are the next steps in the legal challenge to the Executive Order?  For how long can we expect the courts to restrain the Government from implementing the Executive Order?

There are dozens of lawsuits pending in federal courts. However, State of Washington, et al., v. Trump, No. 17-35105, which is the most-watched lawsuit so far due to the fact that the U.S. District Court for the Western District of Washington imposed a nationwide TRO on the Executive Order, is the case to follow.  Right now, it is unclear whether the Government will appeal the decision of the U.S. Court of Appeals for the Ninth Circuit, which last week denied the Government’s attempt to stay the nationwide TRO. The Government could appeal that decision to a fuller panel of the Ninth Circuit or could petition the Supreme Court to hear the issue. There have been conflicting reports as to whether the Government will appeal the issue or whether it will return to arguing the merits of the case. Because of the lack of immediate clarity as to the Government’s intentions, we are unable to provide an estimate for how long the Executive Order will remain on effective hold. We will provide round-the-clock updates should the situation change.

  1. I have heard that President Trump plans to issue a new Executive order to preempt pending legal challenges to the travel ban. Is this true?

We have likewise heard reports that President Trump is considering issuing a new Executive Order that would continue to impose an effective travel ban on persons from the seven affected countries, including Iran. While we do not have any details of the Order, we believe that it would seek to remedy the perceived legal deficiencies of the existing Order. As such, it could, for instance, exclude from its reach U.S. legal permanent residents and U.S. residents holding valid immigrant and non-immigrant visas. However, we would expect any new Executive Order to continue to limit travel from the seven affected countries, thus posing serious constitutional and statutory issues that the pending legal challenges will continue to press.

  1. Are visas being revoked for U.S. visa holders who have not entered the U.S. yet?

According to the U.S. State Department, more than 60,000 visas were provisionally revoked as a result of the issuance of the Executive Order. However, the nationwide TRO has ostensibly reversed the revocation and put an end to the Government’s revocation of visas — pending the outcome in current lawsuits.  

  1. Are visas being revoked for current U.S. visa holders presently within the United States?

According to the U.S. State Department, more than 60,000 visas were provisionally revoked as a result of the Executive Order. However, these revocations — according to a State Department spokesperson — had no effect on the legal status of persons holding visas and resident in the United States. If such persons leave the U.S. and the TRO is lifted, though, their visas may no longer be valid.

  1. What should someone do if they need to renew their visa or change their visa status?

USCIS has indicated that it “continues to adjudicate applications and petitions filed for or on behalf of individuals in the United States regardless of their country of origin,” and that “Applications to adjust status also continue to be adjudicated, according to existing policies and procedures, for applicants who are nationals of countries designated” pursuant to the Executive Order.

While we cannot verify that USCIS continues to adjudicate applications without regard to national origin,  individuals who needs to renew their visa or change their visa status should proceed with their applications. If you have been denied a visa or a change in visa status, please contact us immediately.

  1. Will USCIS automatically deny my visa renewal or status change because I am from one of the seven affected countries?  

We are aware of several instances in which USCIS denied visa renewal applications, but have yet to see indications of an automatic policy in this regard. We will update this answer following the receipt of clarifying information from U.S. authorities.

  1. Should U.S.-Iran dual citizens be concerned about flying to Iran and returning to the U.S. as a result of the Executive Order?

The Executive Order does not apply to U.S. citizens, including dual U.S.-Iran citizens. U.S.-Iran dual citizens thus should not face any additional scrutiny upon their return to the United States from Iran as a result of the Executive Order. However, this does not preclude the Department of Homeland Security from implementing a vigorous screening process for individuals returning from Iran or the other affected countries.  

15. How can I take action?

There are many ways for you to get involved so that we can win this fight.

16. What is NIAC doing to reverse the order?

We are executing a three-pronged strategy to block and reverse Trump’s discriminatory Executive Order:

1) Congressional action. Congress can pass legislation to revoke the order, revoke the President’s authorities to carry out such an order, and/or block funding for the implementation of the order. NIAC Action is organizing NOW to convince lawmakers to take on such an approach.

2) Legal action. We are currently evaluating a lawsuit to reverse this Executive Order, including working in-house and with legal experts in private practice and at other civil rights organizations to pursue the most effective legal path forward.

3) Public pressure. We are mobilizing both our membership and seeking to mobilize others galvanized by the order. Further, we are making sure our message is in the media to ensure the impact of this action is understood by the broader American public. These actions will be critical in channeling public opinion and bolstering all of 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.

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