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Legal Update

New Executive Travel Ban and Refugee Moratorium to Take Effect on March 16, 2017

6 March 2017
Mayer Brown Legal Update

Earlier today, US President Donald Trump signed a new executive order restricting travel to the United States by certain individuals from six countries—Iran, Libya, Somalia, Sudan, Syria and Yemen—for 90 days and placing a moratorium on worldwide refugee admissions for 120 days (the “Executive Order”). Both provisions will take effect at 12:01 a.m. EST on March 16, 2017. Today’s Executive Order, titled “Protecting the Nation from Foreign Terrorist Entry into the United States,” replaces and revokes a prior executive order1 of the same name, which was signed on January 27, 2017. The travel ban and refugee moratorium of the prior executive order, for 90 and 120 days, respectively, following January 27, 2017, were subsequently stayed as a result of a nationwide temporary restraining order (“TRO”) issued by the US District Court for the Western District of Washington, which is the subject of litigation before the US Court of Appeals for the Ninth Circuit.

In contrast to the prior executive order, today’s Executive Order has the following specific provisions relevant to the travel ban.

  • Iraq. Iraq is omitted from the countries whose nationals may be subject to the 90-day travel ban.
  • Length. The 90-day ban will be in effect from March 16 through June 14, 2017.
  • Exempt Individuals. The travel ban does not apply to the following individuals:
    • Any US lawful permanent resident;
    • Any individual who is admitted to or paroled into the United States on or after the effective date of the new Executive Order;
    • Any individual who has a valid travel document other than a visa, valid on the effective date of the new Executive Order or issued any date thereafter, that permits the individual to travel to the United States and seek entry or admission, such as an advance parole document;
    • Any dual national of one of the six affected countries who is traveling to the United States on a passport issued by another, non-restricted country;
    • Any individual traveling on a diplomatic or “diplomatic-type” visa; NATO visa; C-2 visa for travel to the United Nations; or G-1, G-2, G-3 or G-4 visa (i.e., visas for officials and employees of international organization);
    • Any individual who has been granted asylum;
    • Any refugee who has already been admitted to the United States; and
    • Any individual who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture.
  • Case-by-Case Exceptions. A consular officer or US Customs and Border Protection officer may decide on a case-by-case basis to authorize issuance of a visa or permit entry of an individual to the United States who would be otherwise barred by the new Executive Order. Relevant waiver considerations include the following:
    • The individual has been admitted to the United States for a continuous period of work, study or other long-term activity, is outside the United States on the effective date of the new Executive Order and seeks to reenter the United States to resume that activity, and the denial of reentry would impair that activity;
    • The individual has previously established “significant contacts” with the United States but is outside the country on the effective date of the new Executive Order for work, study or other lawful activity;
    • The individual seeks to enter the United States for significant business or professional obligations, and the denial of entry during the suspension period would impair these obligations;
    • The individual seeks to enter the United States to visit or reside with a close family member who is a US citizen, lawful permanent resident or alien lawfully admitted on a valid nonimmigrant visa, and the denial of entry would result in undue hardship;
    • The individual is an infant, young child or adoptee; an individual needing urgent medical care; or “someone whose entry is otherwise justified by the special circumstances of the case;
    • The individual has been employed by, or on behalf of, the US government (or is a dependent of such a person), and the individual can document that he or she has provided “faithful and valuable service” to the US government;
    • The individual is traveling to the United States on behalf of certain international organizations to conduct business with or to attend meetings with the US government;
    • The individual is a landed Canadian immigrant who applies for a visa from within Canada; or
    • The individual is a US government-sponsored exchange visitor.
  • No Visa Revocation. No visas will be revoked based on the new Executive Order.
  • Future Presidential Proclamation with Potentially Broader Travel Ban. Nationals of these six and any other countries that do not comply with provision of “information needed from each foreign country to adjudicate an application by a national of that country for a visa, admission, or other benefit under the INA” within 50 days of notification of this requirement may be subjected to additional travel restrictions until and unless compliance with the request is made. These notifications to countries will be made based on a report that the secretary of homeland security, in consultation with the secretary of state and director of national intelligence, must provide to the President by April 5, 2017.

In summary, the new Executive Order expressly states the travel ban will apply to individuals from the six designated countries only in the following circumstances and if they are not otherwise subject to an exemption:

  • They are outside the United States on March 16, 2017;
  • They did not have a valid visa at 5:00 p.m. EST on January 27, 2017 (when the prior executive order took effect); and
  • They do not have a valid visa on March 16, 2017.

1 Executive Order 13769, issued on January 27, 2017.

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