Fredrikson & Byron’s Revised Travel Alert

February 8, 2017

By Robert D. AronsonLaura J. DanielsonLoan T. HuynhBridget R. Penick & Debra A. Schneider

Last week, we sent a travel alert on the January 27, 2017 executive order, generally referred to as the “Travel Ban,” that limited the ability of citizens and nationals from seven countries – Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen – to enter the U.S. under either nonimmigrant or immigrant visas for at least 90 days, or even to receive visas from U.S. consulates abroad; suspended for at least a 120-day period of time the entire refugee program; disqualified Syrians entirely from refugee eligibility; and pledged to reassess the entire security clearance process for foreign nationals coming to the U.S.

Conversely, the executive order did not affect travel eligibility for citizens and nationals of other countries, nor did it ostensibly affect immigration processing for foreign nationals – even those from the seven countries – already in the United States. U.S. Citizenship and Immigration Services did, however, initially construe the executive order as requiring a suspension of adjudications for foreign nationals covered by the president’s directive, even if already in the country.

Over the ensuing week, we saw an incremental rolling back in the initial sweeping scope of the executive order, largely as a result of a number of judicial decisions, administrative fine-tuning, popular outrage and, to a limited extent, congressional sentiment. While the initial executive order established broad grounds under which designated foreign nationals could be denied entry to the United States, by the end of the week we saw the following rollbacks:

  • “Green card” holders even from the seven designated countries are allowed to enter the United States, as well as dual nationals who are traveling on passports from other countries.
  • Processing of pending immigrant and nonimmigrant applications by those covered in the Travel Ban has resumed.
  • The adjudication of waivers for affected foreign nationals, including refugees, on humanitarian grounds or for extenuating circumstances commenced.
  •  Foreign nationals arriving in the United States just as the executive order was announced were generally released from immigration detention.

The situation changed quite dramatically this past Friday, when a federal district court in the Western District of Washington ruled on a suit, brought jointly by the states of Washington and Minnesota, that the executive order itself should be terminated in its entirety on constitutional, statutory and administrative grounds. In short, this decision did not simply chip away at the executive order; rather, it nullified the executive order itself and reinstituted U.S. immigration and refugee policy nationally to the situation existing prior to the president’s announcement. This decision further created a split within our judicial system, given that a federal court in Massachusetts had more-or-less concurrently issued a decision that implicitly recognized the president’s blanket authority to restrict and detain incoming foreign nationals under national security considerations, although the decision stopped far short of invalidating the executive order nationally.

The issue now before the court is basically whether the decision of the Washington District Court should be implemented immediately or suspended while the courts consider the overall legality of the executive order itself. Quite conceivably, the Ninth Circuit Court might issue its decision within the next few days. The expectation is that this case of State of Washington and State of Minnesota v. Trump will ultimately be decided by the U.S. Supreme Court.

While matters are changing rapidly, the situation today is that foreign nationals coming on nonimmigrant, immigrant, or refugee visas have the right to come to the United States, irrespective of their countries of nationality or citizenship. However, given the fast-moving events and the fluidity in the situation described above, we have noticed increased delays and scrutiny mainly in the visa issuance process at U.S. consulates abroad, and in the admission process at U.S. ports of entry as conducted by immigration inspectors of customs and border protection.

This entire course of events has indisputably made immigration a key element in the ongoing discussion of our national identity and values, resulted in a re-examination of immigration law and policy, and served as a vibrant example of the checks and balances implicit in our constitutional democracy. As further developments unfold, we will continue to provide information and serve as strong advocates for those immigration benefits available to our clients under the law.

Please contact the Fredrikson & Byron Immigration Group at 612.492.7648 with questions regarding the executive order or other travel concerns.