Trump Ushers in Sweeping Immigration Changes – Updated

I normally don’t post anything on this blog outside of sanctions news and analyses.  However, due to the heightened concern and alarm surrounding President Donald Trump’s statements and Executive Order on Friday, I decided to provide a simple analysis that could useful to the many individuals and families that could be impacted.  Given that we are in the first hours of this Executive Order going into effect and the vagueness of its language, there is a possibility I may have to clarify certain points in this blog post later.

President Trump yesterday issued an Executive Order mandating sweeping changes to U.S. immigration policy.  This order, “Protecting the Nation from Foreign Terrorist Entry Into the United States” seeks to, among other things, protect U.S. citizens from “foreign nationals who intend to commit terrorist attacks in the United States… and to prevent the admission of foreign nationals who intend to exploit United States immigration laws for malevolent purposes.” While the U.S. media has largely focused on the impact of the Executive Order on the nationals of certain Muslim-majority countries, the changes called for in the Order, as seen below, are dramatic and impact individuals far beyond the boundaries of the Islamic world.

What is included in the new Executive Order?

  1. “Extreme Vetting.” Trump is acting on a campaign process of implementing “extreme vetting” of visitors and immigrants seeking to enter the United States, calling for the U.S. Departments of State and Homeland Security, and Director of National Intelligence to determine the scope of information required to admit individuals into this country, and to grant admissions and other benefits under the Immigration and Nationality Act (INA).  These are aimed in part at ensuring that the would-be immigrant or visitor is not a threat to U.S. national security.Beyond the immediate short term, the Executive Order calls for more robust screening for all visa applicants others seeking immigration benefits.  The Executive Order calls for combating the entry of both those seeking to enter the United States with the intent to cause harm and those who are at risk of causing harm.  The administration seeks to achieve this by creating and imposing a strict review standard for such applicants, including vetting parameters to screen them, including evaluating whether these persons are likely to be a “positively contributing member of society.”
  1. The so-called “Muslim Ban.” An immediately effective 90-day ban on issuing visas to aliens from seven countries (with narrow exceptions), specifically Iran, Sudan, Iraq, Libya, Somalia, Syria, and Yemen entering the United States.
  1. Review of Documentary Review Standards for Admission.  The Executive Order requires the Secretary of Homeland Security to review the documentary standards for aliens and determine what documents can be provided from the alien’s country of nationality for his or her case to be adjudicated for entry into the United States.  The Secretary must then provide a report within 30 days of those countries not providing what it deems to be adequate information, which will result in the Secretary of State requesting foreign governments to provide what the Department of Homeland Security (DHS) considers adequate information. If the foreign government does not comply within 60 days of that request, that country’s nationals will also be barred entry to the United States, with limited exception.  Beyond this standard, the Secretary of State and the Secretary of Homeland Security can make additional recommendations for more countries they deem to be deserving of similar treatment.
  1. Restrictions on Refugee Entry. There will be broad changes to the intake of refugees into the United States. Specifically:
  • 120-day suspension of the U.S. Refugee Admissions Program (USRAP). This is to allow reevaluation of the current USRAP system of granting entry to refugees, supposedly to prevent security threats from entering the United States. Refugees who are already in the process, however, can be admitted once the revised procedures are implemented.
  • Revision of Prioritization once USRAP resumes. Once the policy’s suspension ends, the government intends to prioritize refugee claims for religious-based persecution by individuals who are members of a minority religion in their own country.
  • A cap of 50,000 refugee admissions in the United States for Fiscal Year 2017.
  • Indefinite Bar on Admission of Syrian Refugees. This prohibition will be in effect until the Mr. Trump has determined that USRAP reforms are sufficient to ensure that the admission of Syrians as refugees is aligned with U.S. national interests.
  1. Suspension of the Visa Interview Waiver Program. This means visas will be required for renewals, irrespective of the visa holder’s country of nationality. It also calls for the expansion of staffing at foreign embassies and consulates to “ensure that non-immigrant visa-interview wait times are not unduly affected.”
  1. Review and Reevaluation of Visa Reciprocity Policies. The Secretary of State is to review non-immigrant reciprocity arrangements to ensure that they are parallel with U.S. policies and to align policies vis-à-vis nationals of the respective other country accordingly.

Some Likely Questions:

  • Does the ban cover U.S. Permanent Residents (Green Card Holders)?  

Most probably. The media has already reported at least some Permanent Residents arriving at U.S. ports of entry immediately after the signing of the Executive Order being held and perhaps sent back to their points of origin.  As of Saturday morning, the Acting Spokesman of the Department of Homeland Security (DHS) has confirmed that the ban includes U.S. Permanent Residents from the seven designated countries.

  • Does the ban apply to nationals of all Muslim-majority countries?

No. Based on the language in the Executive Order, only seven countries (Iran, Sudan, Iraq, Libya, Somalia, Syria, and Yemen) fall under the visa ban, although more countries, Muslim-majority or not, can later be added to the list of countries whose nationals will be denied visas and entry.

  • Are there exceptions to the “Muslim Ban” and other “blacklisted” states?

Yes.  Certain types of visa holders, including diplomats and certain international civil servants are excluded from these bans. Additionally, the Secretaries of State and Homeland Security have discretion to issue visas and other immigration benefits to such nationals on a case-by-case basis if they deem it to be in the national interest. This, however, is vague and not defined.

  • Are there Exceptions to Refugee restrictions?

Yes. There is some discretion for exceptions on a case-by-case basis, under certain narrow circumstances

  • Is this Executive Order Being Legally Challenged?

Yes. The New York Times has reported that there is already a lawsuit filed on behalf of two Iraqi nationals held at John F. Kennedy Airport in New York, and there has been a motion for class certification for all refugees and others detained at U.S. ports. A copy of the complaint with the backing of the American Civil Liberties Union (ACLU).

Conclusion

Friday’s Executive Order is very broad in scope and can cause potentially dramatic changes to U.S. immigration policy. Notably, however, it is also vague and this vagueness can wreak much confusion which can permeate to airport and airline personnel in foreign countries as well as U.S. Customs and Border Protection (CBP) officials at U.S. ports of entry.  It is natural to expect that some clarification will be forthcoming, and there could be constitutional challenges in the courts that could potentially enjoin at least parts of this Executive Order. Until there is such clarity, I advise all persons to err on the side of caution and not guess or self-interpret.  Please consult with an immigration expert before making any travel or visitation plans.

 

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An international trade and regulatory lawyer.

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