Travel Ban 2.0: What Businesses Need to Know About the New Executive Order

On March 6, 2017, the White House issued a new version of the Presidential Executive Order on Protecting the Nation From Foreign Terrorist Entry Into the United States (Travel Ban 2.0) and revoked the January 27, 2017 Executive Order issued by the White House (January 27 EO) as of the new order’s March 16, 2017 effective date. Travel Ban 2.0 provides additional information and guidance on the necessity of the travel ban and makes revisions to the January 27 EO. To allow for proper implementation, the effective date of the new EO is March 16, 2017.

Important changes with Travel Ban 2.0: (1) Iraq has been removed from the travel ban; (2) Lawful permanent residents of the six banned countries not included; (3) Valid visa holders not banned; (4) Dual nationals of the six banned countries can be admitted when the individual is traveling on a passport issued by a non-designated country; and (5) CBP has specific waiver authority to allow admission into the U.S.

In addition to the issuance of the Executive Order, the Department of Homeland Security has also issued implementation memos, fact sheets and FAQs for the March 16, 2017 implementation to try to avoid the confusion, chaos and litigation that occurred with the January 27 EO.

Highlights of Travel Ban 2.0

Section 1 – Policy and Purpose: The new EO provides over seven pages of information detailing reasons for the new travel ban, including specific descriptions taken from the Department of State’s Country Reports on Terrorism 2015 (June 2016) regarding the terrorism conditions in the following countries: Iran, Libya, Somalia, Sudan, Syria and Yemen. Since Iraq is not included in Travel Ban 2.0, the conditions of Iraq are not included in the new EO. For example, the new EO states the following about Iran and Libya:

• “Iran has been designated as a state sponsor of terrorism since 1984 and continues to support various terrorist groups, including Hizballah, Hamas, and terrorist groups in Iraq.”
• “Libya is an active combat zone, with hostilities between the internationally recognized government and its rivals.”
• “Violent extremist groups, including the Islamic State of Iraq and Syria (ISIS), have exploited these conditions to expand their presence in the country.”

Similar details on terrorism are included about Somalia, Sudan, Syria and Yemen. It is clear that these and other statements about terrorism were expanded on in Travel Ban 2.0 to potentially avoid the issues raised by the January 27 EO and stopped through the litigation that ensued in the days and weeks following the January 27 EO issuance and implementation. This section of Travel Ban 2.0 goes on to indicate that while assessment is ongoing about these countries, there will be a pause on the entry of nationals from Iran, Libya, Somalia, Sudan, Syria and Yemen. Section (g) provides more information about Iraq and its special situation and why Iraq is not included in Travel Ban 2.0, including “since Executive Order 13769 was issued, the Iraqi government has expressly undertaken steps to enhance travel documentation, information sharing, and the return of Iraqi nationals subject to final orders of removal.” However, this provision also notes that decisions about the issuance of visas or granting of admission to Iraqi nationals will remain under heightened scrutiny.

Section 2 – Temporary Suspension of Entry for Nationals of Countries of Particular Concern During Review Period: This section highlights that the Secretary of Homeland Security, Secretary of Defense and Director of National Intelligence will conduct a worldwide review to determine if additional information is needed for immigration applications and admission to the U.S. and have 20 days to issue a report to President Trump regarding this worldwide review. This section then outlines that the entry of nationals of Iran, Libya, Somalia, Sudan, Syria and Yemen is suspended for 90 days from March 16, 2017, subject to waivers and exceptions as set forth in sections 3 and 12 of the EO. This section goes on to state that as part of the worldwide review and report that additional countries can be submitted to the President for recommendation for similar treatment as the six countries listed in Travel Ban 2.0.

Section 3 – Scope and Implementation of Suspension: This section is new in Travel Ban 2.0 and was not included in the January 27 EO. It states that the ban in Section 2 from entry into the United States for nationals from Iran, Libya, Somalia, Sudan, Syria and Yemen only applies to those foreign nationals of the designated countries who are included in the following:

• Are outside of the U.S. on the effective date of the order
• Did not have a valid visa as of 5:00 p.m. EST on January 27, 2017
• Do not have a valid visa on the effective date of this order

The following exceptions apply to nationals of the six banned countries:

• Does not apply to any lawful permanent resident of the United States
• Any foreign national who is admitted to or paroled into the United States on or after the effective date of the order
• Any foreign national who has a document other than a visa, valid on the effective date of this order or issued on any date thereafter, that permits him or her to travel to the United States and seek entry or admission, such as an advance parole document
• Any dual national of a country designated under section 2 of this order when the individual is traveling on a passport issued by a non-designated country
• Any foreign national traveling on a diplomatic or diplomatic-type visa, NATO visa, C-2 visa, or G-1, G-2, G-3 or G-4 visa
• Any foreign national who has been granted asylum; any refugee who has already been admitted to the United States; or any individual who has been granted withholding of removal, advance parole or protection under the Convention Against Torture

Section 3(c) also outlines a specific provision about “Waivers” that was not previously included in the January 27 EO. This section provides additional information about the waiver process which would allow an individual from one of the banned countries to obtain a waiver from U.S. Customs and Border Protection (CBP). Travel Ban 2.0 includes a detailed list of circumstances when a waiver might be applicable. For example, CBP could issue a waiver for an individual from one of the six banned countries if “the foreign national has previously been admitted to the United States for a continuous period of work, study or other long term activity, is outside of the United States on the effective date of this order, seeks to reenter the United States to resume that activity, and the denial of reentry during the suspension would impair that activity.” Other examples include previous significant contacts with the U.S., visiting a close family member who is a U.S. citizen, lawful permanent resident or lawfully admitted on a valid nonimmigrant visa, and admission into the U.S. needed for significant business or professional obligations. Additional waiver examples are also outlined in the new EO.

Section 4 – Additional Inquiries Related to Nationals of Iraq: Applications for admission to the U.S. or a visa or other immigration benefit for Iraqi nationals must be thoroughly reviewed. Such review must include consideration of whether the applicant has ties to ISIS.

Section 5 – Implementing Uniform Screening and Vetting Standards for All Immigration Programs: The government shall develop a uniform baseline for screening and vetting all individuals who enter the U.S. This program will include in-person interviews, database of identity documents, and amended application forms to identify fraudulent answers and malicious intent, among other items.

Section 6 – Realignment of the U.S. Refugee Admissions Program for Fiscal Year 2017: Travel Ban 2.0 suspends the travel of refugees into the U.S. and applications for refugee status for 120 days. During this time, the government will review and make further recommendations to the White House. The EO further states that those refugee applicants who before the effective date of the order had been formally scheduled for transit by the State Department are not covered by this refugee ban. This section also indicates that the entry of more than 50,000 refugees for FY 2017 would be detrimental to the national interest. However, this section also outlines that there could be exceptions made on a case-by-case basis.

Section 7 – Rescission of Exercise of Authority Relating to the Terrorism Grounds of Inadmissibility: The Secretary of Homeland Security with the Attorney General shall consider rescinding the exercises of authority under 8 U.S.C. 1182(d)(3)(B) relating to the terrorism grounds of inadmissibility.

Section 8 – Expedited Completion of the Biometric Entry-Exit Tracking System: Outlines that completion and implementation of this system should be expedited and reports to be made to the White House.

Section 9 – Visa Interview Security: This section suspends the Visa Interview Waiver Program to ensure compliance with 8 U.S.C. 1202.

Section 10 – Visa Validity Reciprocity: This section provides for the Secretary of State to review all nonimmigrant visa reciprocity agreements and fee schedules and make any needed adjustments pursuant to the provisions of this EO.

The remaining sections of Travel Ban 2.0 discuss data collection, enforcement and reporting. No immigrant or nonimmigrant visa issued before the effective date of this EO shall be revoked pursuant to this EO. Implementation of Travel Ban 2.0 starts March 16, 2017.

Additional Information

For more information on Travel Ban 2.0 – Protecting the Nation from Foreign Terrorist Entry to the United States, please see the following:

• March 6 Executive Order
• March 6 Presidential Memos
  • Memorandum for the Secretary of State, the Attorney General, the Secretary of Homeland Security
  • Memorandum from the Attorney General and Secretary of Homeland Security
• March 6 Fact Sheet
• March 6 Q & A

Unlike the January 27 EO where there was no implementing guidance and FAQs, the links above provide answers to many questions about who/who is not covered under Travel Ban 2.0. As additional information is released, we will also provide further legal updates and guidance.

What’s Next

As with the January 27 EO, it is highly likely that litigation will be brought pursuant to Travel Ban 2.0. Although the Trump administration has tried to address the issues raised by the January 27 EO, immigration groups and the ACLU will likely bring litigation to try to halt the implementation of this new travel ban both before and after the March 16 implementation date. The State of Washington has indicated that it is currently reviewing the new travel ban and will make a determination on whether it will bring litigation as it did with the January 27 EO. As such litigation is brought to the courts, we will continue to provide updates on the impact to U.S. employers and their employees working in the United States, as well as those working abroad who need to travel into the U.S.

As outlined in our prior legal update on the January 27 EO, we have and continue to see stricter scrutiny and screening of all foreign nationals, including permanent residents, visitors and workers, who have been entering the U.S. since the issuance of the January 27 EO. All individuals coming into the U.S. are being questioned and detained through the “extreme vetting” by CBP officials at the airport. This will only be enhanced through Travel Ban 2.0 and will affect more and more individuals seeking admission at the airport and visa at U.S. embassies and consulates overseas. Individuals traveling into the U.S. must have their documentation in order and be prepared to answer questions at the airport. CBP officials at the airport are conducting additional security and criminal background checks for individuals trying to enter the U.S., as well as checking cell phones, laptops and social media of travelers into the U.S. CBP has the right to do this type of inspection and reports indicate that these searches are happening more frequently.

We will provide further information as additional Executive Orders or new information is released on Travel Ban 2.0.