President Trump Signs Revised ‘Travel Ban’ Executive Order, States File Challenges
This article was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Laura Danielson is an active member.
President Donald Trump signed a new "travel ban" executive order on March 6, 2017, that was scheduled to take effect March 16. Among other things, the new order revokes a previous order signed on January 27, 2017, and reduces to six, from the previous seven, countries whose nationals are suspended from entry under a "temporary pause." The order exempts permanent residents and valid visa holders as of certain dates and times, and provides for case-by-case discretionary waivers. The order also suspends refugee travel to the United States for 120 days for those not previously admitted, subject to waivers in certain circumstances. The new order includes explanations of President Trump's rationale for the order's provisions.
Several states immediately filed or joined legal challenges against the new travel ban order, including Hawaii, Washington, New York, Maryland, Oregon and Massachusetts. The states challenging the ban did so for a variety of reasons. Bob Ferguson, attorney general for the state of Washington, said, "We're asserting that the president cannot unilaterally declare himself free of the court's restraining order and injunction." He noted, "After spending more than a month to fix a broken order that he rushed out the door, the President's new order reinstates several of the same provisions [as the earlier order issued in late January] and has the same illegal motivations as the original. As of this writing both Maryland and Hawaii have issued temporary orders blocking the ban.
The new list of countries on a "temporary pause" for entry of their nationals to the United States includes Iran, Libya, Somalia, Sudan, Syria and Yemen, but does not include Iraq, which the new order says "presents a special case." The order notes that "[d]ecisions about issuance of visas or granting admission to Iraqi nationals should be subjected to additional scrutiny to determine if applicants have connections with ISIS or other terrorist organizations, or otherwise pose a risk to either national security or public safety." The new list of countries is "subject to categorical exceptions and case-by-case waivers," the order states. The new order makes an exception for nationals of the countries on the banned list who had a valid visa at certain specified times and dates; are permanent residents; have other valid travel documents; are dual nationals who are traveling on a passport issued by a non-designated country; are traveling on a diplomatic visa; have been granted asylum; are in refugee status and have already been admitted to the United States; or who have been granted withholding of removal, advance parole, or protection under the Convention Against Torture.
The order also lists examples of possible discretionary waiver cases, such as returning students in an ongoing program of study, and calls for a review of all nonimmigrant visa reciprocity agreements and arrangements, among other things.