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Legal Update

Advance Advisory: New Executive Order with Revised Travel Ban Expected Shortly

5 March 2017
Mayer Brown Legal Update

We expect the Trump administration to issue a new Executive Order (“EO”) to address the travel ban for countries “of concern” and moratorium on refugee admissions. While we have not yet seen a copy or final confirmation of the time for signature, we include the most likely scenario below:

  1. The president will likely sign the new EO as early as Monday, March 6, 2017.
  2. The administration will likely treat the new EO as one that supersedes the prior executive order, although some reports, including from the White House press secretary, have been ambiguous as to whether the administration will continue to defend the prior executive order in court actions on a “dual track.” Briefing on the prior executive order and the halt on its travel ban and refugee moratorium stemming from the US District Court in Washington’s decision is due to the Ninth Circuit on March 10.
  3. With regard to exemptions from the travel ban, we expect the new EO to:
    • Almost certainly exempt lawful permanent residents (“green” card holders or other persons lawfully granted residency but who have not yet received their “green” cards) from the travel ban;
    • Likely exempt persons from the banned countries who hold a passport from another unrestricted country from the travel ban; and
    • Possibly exempt previously admitted visa holders with valid, nonimmigrant status from the travel ban.
  4. With regard to the countries included in the travel ban, we do not expect any new countries to be added to the seven original countries – Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen. There have been some reports that Iraq may be dropped from the list, but we have heard no official verification of that change.
  5. With regard to refugee admissions, the Syrian refugee provisions for an indefinite ban will likely be dropped, such that any moratorium on refugee admissions will have the same time limitations regardless of country of origin. We expect that any blanket preference for admission for refugees fleeing from religious persecution will be dropped. We also expect the volume of refugee admissions for this fiscal year (which will continue through September 30, 2017) to be capped at 50,000 (versus the current ceiling of 110,000, which was set by the former administration).
  6. In terms of the time span of the travel ban, we anticipate the ban would continue through the originally sought 90th day of April 27, 2017. According to the prior executive order, the administration allowed for the possibility of the ban continuing if any of the banned countries did not supply data sufficient to screen incoming nationals effectively, based on a mandated assessment by the secretary of homeland security in consultation with the secretary of state and director of national intelligence. We do not know at this point whether this potentially indefinite elongation of the ban will be included in a new EO.
  7. We expect there will be a phase-in period of an estimated seven days, which will allow for travelers affected by the ban to return to the United States from abroad if needed.

We shall be circulating an alert shortly after verification that the new EO is signed. Our prior alerts on the topic may be located on our Mayer Brown site, US Travel Restrictions and Major Immigration Developments.

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