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  • Article: Executive Order Fallout - Who Can Travel and Whose Visas Are Revoked - All Eyes on the Ninth Circuit By Kathleen Campbell Walker

    Executive Order Fallout - Who Can Travel and Whose Visas Are Revoked - All Eyes on the Ninth Circuit

    by


    Uncertainty, inconsistency, and lack of agency coordination have been the main constants since President Trump signed Executive Order 13769 (EO) immediately suspending the “entry” of nationals “from” Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen (the seven countries) on January 27.

    The chaos which ensued regarding the interpretation and application of the EO among the affected agencies eventually came to a screeching halt on February 3, 2017 when Judge James L. Robart, U.S. District Judge for the Western District of Washington in Seattle, issued a Temporary Restraining Order (TRO) with nationwide application to enjoin the enforcement of section 3(c), 5(a), 5(c), and 5(e) of the EO at all borders and ports of entry to the United States (U.S.) in the case of State of Washington & State of Minnesota v. Trump, (17-35105). On February 4, the U.S. Department of Justice (DOJ) filed an emergency motion for an administrative stay and motion for stay of the injunction against the enforcement of the EO pending appeal with the U.S. Court of Appeals for the Ninth Circuit. The Ninth Circuit denied the emergency motion filed by the DOJ pending full consideration of the emergency motion and required the DOJ to provide a reply in support of the emergency motion by Monday, February 6 at 3 pm PST. The oral argument on the emergency stay before the Ninth Circuit is set for Tuesday, February 7 at 3 pm PST.

    Agency Responses

    When the EO was issued, it was clear that all of the relevant agencies did not have time to develop a coordinated approach. The Department of Homeland Security (DHS) took the lead since it was the department most immediately affected as to the entry of the designated nationals to the U.S. The agency on the front line for entry is U.S. Customs and Border Protection (CBP) with over 300 land, air, and sea ports. As to the potential provisional revocation of and suspension of the application for visas (the “ticket” presented to apply for entry/admission), the Department of State (DOS) at over 200 consular posts worldwide was next. Then, within the U.S., U.S. Citizenship and Immigration Services (USCIS) had to address what to do about petitions for immigrant and nonimmigrant benefits with over 85 field offices as well as international offices. For a basic graphic of the U.S. legal immigration process, please refer to the chart at the embedded link in this sentence published by the Reason Foundation in collaboration with the National Foundation for American Policy.

    Department of State (DOS)

    1.    Provisional Visa Revocation

    On January 27, the Deputy Assistant Secretary for Visa Services of the Bureau of Consular Affairs, Edward J. Ramotowski, issued a notice pursuant to the request of DHS,[1] which “provisionally revoked” all valid nonimmigrant and immigrant visas of nationals “of” Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen. The only exceptions to the provisional visa revocations cited in the notice applied to the following nonimmigrant classifications: A-1, A-2, G-1 through G-4, NATO, C-2, and “certain diplomatic visas.” The notice did recognize that the revocation would not apply to any visa exempted on the joint determination of the Secretaries of State and Homeland Security on a case-by-case basis pursuant to section 3(g) of the EO.

    Based on the TRO, DOS issued an announcement “lifting” the provisional revocation of visas and declaring that they were now valid for travel to the U.S. Those individuals whose visas are expired or “were physically cancelled” must apply for a new visa at a U.S. Consulate or Embassy, UNLESS CBP decides to grant a parole admission or “waive” the visa requirement at the port of entry pursuant to the filing and approval of a documentary waiver. Allegedly, approximately 60,000 visas were cancelled by DOS. CBP did later decide to grant such documentary waivers as described below.

    Of course, the issue of when a revoked visa becomes effective remains an issue for review. For example, FAM 403.11(A)(2) appears to indicate that a revocation is not effective as to individuals inside of the U.S. as of the revocation date until they depart the U.S. The same interpretation appears to have been used by DHS regarding its posted statement after the EO was issued, "F1/J1/M1 visas are currently temporarily suspended due to the executive order. Individuals who were in the U.S. at the time of the signing of the executive order are not affected by the order. However, individuals who were out of the country at the time of the signing, or who travel out of the country and attempt to return will not be allowed to return at this time..." It is important to note that the posting also advised that, “The Department is evaluating whether those who are precluded from returning as a result of the Executive Order will be considered to have maintained their status as F1 or M1 students.”

    2.    Suspension of Visa Interviews and Processing

    In addition, on January 27, DOS instructed embassies and consulates to temporarily stop scheduling appointments and ended the processing of immigrant and nonimmigrant visa applications for those from the seven countries with limited exceptions. The National Visa Center (NVC) cancelled all scheduled immigrant visa interviews for nationals or dual nationals of the seven countries scheduled on February 1.

    Before the TRO, on February 2, DOS posted an alert noting that the EO does “not restrict the travel of dual nationals from ANY country with a valid U.S. visa in a passport of an unrestricted country.” In addition, the notice indicated that U.S. consulates and embassies would continue to process nonimmigrant and immigrant visa applications for those applying for such visas with a passport from an unrestricted country “even if they hold dual nationality from one of the seven restricted countries.” Unfortunately, there was no clarification about whether the provisionally revoked visa notice applied to such dual nationals.

    After the TRO, DOS announced that the NVC or the U.S. Embassy would contact those affected to reschedule interviews and that the NVC would continue to process cases up to the point of interview.

    3.    End of the Visa Interview Waiver Program (IWP)

    Section 8(a) of the EO immediately suspended the IWP to ensure compliance with §222 of the INA, subject to specific statutory exceptions. This change would have increased the number of in person visa application interviews dramatically for DOS consular posts worldwide. On February 1, 2017, DOS confirmed that the majority of interview waiver cases under 22 CFR §41.102 would continue such as cases for those under the age of 14 or over the age of 79 as well as those for whom a visa in the same nonimmigrant visa category was issued in the prior 12 months. The EO suspension was interpreted to eradicate only the January 2012 expansion of the IWP under President Obama’s Executive Order which allowed the waiver of an in person interview for low risk nonimmigrant visa applicants (other than E, H, L, P, or R nonimmigrant visa applicants)[2] renewing their visas within 48 months of their previous visas and for Argentine and Brazilian visa applicants below the age of 16 and age 66 and older.

    Department of Homeland Security (DHS)

    1.    Suspension of Entry –

    Without public notice from CBP, CBP officers began enforcing the perceived terms of the EO the evening after its execution.   Airline carriers began to refuse to board those using passports from one of the seven countries as well as dual nationals using a non-restricted country’s passport. Individuals in transit were often turned back at the U.S. port of entry during this time frame. In many cases, visas were physically cancelled by CBP officers. On January 29, DHS announced that less than one percent of the more than 325,000 international air travelers arriving to the U.S. were “inconvenienced” while enhanced security measures were implemented. This statement does not address those who were prevented from boarding planes to the U.S. or those whose visa appointments were cancelled.

    Some affected travelers appear to be experiencing revocations of their participation in various frequent traveler programs such as Global Entry. CBP confirmed with the American Immigration Lawyers Association (AILA) that the Trusted Traveler status of those subject to the travel ban was cancelled after the signing of the EO and that the cancellation initially included dual nationals, who were U.S. legal permanent residents. CBP is apparently now working to reinstate such individuals into the programs.

    On January 27, CBP starting posting its helpful Frequently Asked Questions (FAQs) regarding the implementation of the EO. As to who is being considered “from” one of seven countries, CBP advised that travelers are being treated “according to the travel document they present.” CBP also reminded international travelers in these FAQs that all international travelers are subject to CBP inspection and that electronic and digital devices are subject to search.

    On January 29, DHS clarified that for the next 90 days, nearly all travelers, except U.S. citizens, traveling on passports from one of the seven countries, would be temporarily suspended from entry to the U.S. Again the notice clarified that U.S. legal permanent residents traveling to the U.S. on a valid I-551 permanent resident document would be allowed to board U.S. bound aircraft and be assessed for the application of an “exception” to allow entry in the national interest.

    On February 3, DHS clarified that the 90 day “pause” regarding nationals from the seven countries, does not apply to: U.S. legal permanent residents, dual citizens with passports from a country other than the seven listed, or those traveling on diplomatic, NATO, or UN visas. In addition, those holding special immigrant visas who are nationals of the seven countries could board U.S. bound planes and apply for a national interest exception to the EO.

    On February 4, post the TRO, DHS posted a notice that its inspection of travelers would be done in accordance with “standard policy and procedure.” In addition, as to those whose visas were physically cancelled due to the EO, CBP noted that these individuals would not need to reapply for a new visa as long as they were otherwise admissible to the U.S. In this situation, CBP would consider a waiver of the documentary requirement of the visa pursuant to an I-193 waiver (without payment of the $585 filing fee) upon arrival at a U.S. port of entry. In addition, CBP noted that for those traveling via air, that airlines had been instructed to contact CBP to obtain boarding authorization for the traveler.

    U.S. Citizenship and Immigration Services (USCIS)

    On or about January 30, USCIS sent the following notice via email to USCIS Field Offices:

    “Effectively [sic] immediately and until additional guidance is received, you may not take final action on any petition or application where the applicant is a citizen or national of Syria, Iraq, Iran, Somalia, Yemen, Sudan, and Libya,” wrote Daniel M. Renaud, Associate Director of field operations for DHS’s office of U.S. Citizenship and Immigration Services. “Field offices may interview applicants for adjustment of status and other benefits according to current processing guidance and may process petitions and applications for individuals from these countries up to the point where a decision would be made.”

    “At that point, cases shall be placed on hold until further notice and will be shelved with specific NFTS codes which will be provided through the Regional Offices,” Renaud went on to say. “Offices are not permitted [to] make any final decision on affected cases to include approval, denial, withdrawal, or revocation.”

    “Please look for additional guidance later this weekend on how to process naturalization applicants from one of the seven countries listed above who are currently scheduled for oath ceremony or whose N-400s have been approved and they are pending scheduling of oath ceremony,” Renaud wrote. “We expect to issue more detailed guidance and procedures as needed in the coming days.”

    Then, on February 1, CBP indicated in its FAQs about the implementation of the EO, that USCIS would continue to adjudicate N-400 applications for naturalization and administer the oath of citizenship consistent with prior practices.

    Finally, on February 2 (before the TRO), USCIS Acting Director, Lori L. Scialabba, issued guidance to USCIS employees that section 3(c) of the EO “does not affect USCIS adjudications of applications and petitions filed on behalf of individuals in the United States regardless of their country of nationality.”   In addition, USCIS directed that the same provision of the EO did not affect applications or petitions for individuals outside of the U.S. whose approval does not directly confer travel authorization (including nonimmigrant and immigrant petitions). Thus, I-485 adjustment applications are allowed to be adjudicated as well as I-730 Refugee/Asylee relative petitions. Refugee interviews are also continuing in jurisdictions where there is a preexisting international agreement regarding refugee processing.

    On February 3, USCIS posted a short notice confirming the same approach.

    SO WHAT TO DO?

    We know that the DOJ will continue its fight at the present to reinstate the EO. It is important to remember what the agencies were doing as to the implementation of the EO before the TRO, if the travel ban is reinstated. We are not able to predict when or if the EO may be reinstated. Of course, there were numerous habeas petitions filed in multiple jurisdictions due to the EO, which also resulted in the ability of some of the affected visa holders and refugees being admitted to the U.S. It is possible that the 90 day pause (ending on April 27 under the EO) will be ended by ongoing litigation in federal courts throughout the entire time frame. In the meantime, the situation is still fluid and we are already seeing the impact of the other executive orders. For example, remember that enforcement priorities outlined in the Executive Order signed on January 25 include having engaged in fraud or willful misrepresentation in connection with any “official matter” or application before a government agency and do not require an arrest.

    While the fate of the emergency stay of the travel ban is to be argued today (February 7) and available via live streaming, the attorneys for the DOJ appear to have suggested a possible narrowing of the application of the travel ban for consideration. Specifically, on page 12 of the government’s reply in support of the emergency motion for stay pending appeal, the DOJ attorneys suggest that any injunction could be narrowed to exclude the individuals who were previously admitted to the U.S. who were temporarily abroad at the time of the signing of the EO as well as those who now wish to travel and return to the U.S. in the future. Thus, the EO might be narrowed to apply to applicants for initial nonimmigrant and immigrant visas to enter the U.S.

    The bottom line is that due to the ongoing changes resulting from litigation and agency interpretation and actions, it is critical to check on the risk related to travelling internationally before leaving the U.S.

    [1] In addition, Mr. Ramotowski cited that the notice was issued pursuant to section 212(f) and 221(i) of the Immigration and Nationality Act, as amended (INA), as well as 22 CFR §41.122 and 42.82 to implement section 3(c) of the EO.

    [2] See 9 FAM 403.5-4(A)(3)(b).

    This post originally appeared on DY*KEMA GOSSETT PLLC © 2017 DY*KEMA GOSSETT PLLC. All rights reserved. Reprinted with permission. Reprinted with permission.


    About The Author

    Kathleen Campbell Walker is the leader of national law firm Dy*kema’s Immigration Team in the Labor and Employment Department and a former national president of the American Immigration Lawyers Association.


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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