Trump Executive Order Restricts Visa Issuance, Entry by Nationals of Muslim Countries, and Refugee Admissions

*** LEGAL UPDATE ***

Executive orders on immigration have been coming thick and fast from the White House. On January 27, 2016, Trump issued one titled “Protecting the Nation from Terrorist Entry into the United States by Foreign Nationals.”

Below is, in brief, what this order does, or intends to do. Already, however, many sections are already the subjects of federal court injunctions (temporarily stopping parts of the order from going into effect) and ongoing lawsuits, not to mention conflicting and contradictory statements by federal agencies and authorities as to how the order will be interpreted and carried out.

  • Suspends issuance of visas and other "immigration benefits" to people from countries of “particular concern,” which includes the existing list of countries considered to support terrorism (Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen), plus a new list to be created after a review of the countries’ responsiveness to providing information about personal identities and security or public safety threats. (Rumors are already flying . . . ) An exception will be made for people traveling on diplomatic visas, North Atlantic Treaty Organization (NATO) visas, and C-2 visas for travel to the United Nations. Exceptions may also be made for individual cases based on U.S. national interests. Although the word "Muslim" is nowhere used, this section has had the practical effect is a bar to admission to people from Muslim countries. And the intention is doubly clear if one looks at press releases from the Trump-Pence campaign, one of which called for a "total and complete shutdown of Muslims entering the United States until our country's representatives can figure out what is going on." This section of the order also failed to specify whether it applies to people who already have U.S. lawful permanent residence (a green card). The Department of Homeland Security and Trump have since flip-flopped on this more than once, creating chaos at U.S. airports and for incoming travelers or U.S. residents possibly trapped overseas. As of February 1, 2017, the word from Customs and Border Protection (CBP) is that it views admitting lawful permanent residents who are nationals to be in the national interest, and will approve each person for entry on a case-by-case basis, "absent significant derogatory information." Note also that the now off-limits "immigration benefits" may include naturalization (citizenship).
  • Creates new screening standards for anyone applying for immigration benefits. The order mentions, for example, intentions to set up “in-person interviews” for visa applicants (which are already held in many cases), “creation of a database of identity documents proffered by applicants to ensure that duplicate documents are not used by multiple applicants,” “amended application forms that include questions aimed at identifying fraudulent answers and malicious intent,” a “process to evaluate the applicant’s likelihood of becoming a positively contributing member of society and the applicant’s ability to make contributions to the national interest,” and a “mechanism to assess whether or not the applicant has the intent to commit criminal or terrorist acts after entering the United States.”
  • Suspends the U.S. Refugee Admissions Program (USRAP) for 120 days, and bars entrants from Syria until the president decides that "sufficient changes have been made to the USRAP to ensure that admission of Syrian refugees is consistent with the national interest.” The 120-day period will be used to review the USRAP application and adjudication process to see what additional screening procedures should be added. This will delay, but not destroy the applications of refugees already in the USRAP admission process. A few may be admitted regardless, if it’s “in the national interest.”
  • Limits refugee admissions in fiscal year 2017 to 50,000. (The Obama administration’s target was 110,000 in fiscal year 2017, according to information from the Pew Research Center.)
  • Going forward, prioritizes refugee claims made by people who suffered persecution as a member of a "minority religion" in the individual’s country of nationality. Given the countries from which many refugees are fleeing, this is clearly intended to create a preference for Christian refugees, as evidenced by Trump's statement to Christian Broadcast News. (But it could be good news for Zoroastrians!)
  • Gives state and local jurisdictions greater authority regarding placement or settlement of refugees there.
  • Speeds up implementation of a biometric entry-exit tracking system for all travelers to the U.S.
  • Mandates that anyone seeking a nonimmigrant U.S. visa go through an in-person interview first. Formerly, interviews could be waived in certain types of cases. This will create backups in people’s ability to travel to the United States.
  • Requires review of all nonimmigrant visa reciprocity agreements to see whether they are truly reciprocal with respect to validity periods and fees. (This could result in changes to how much people pay for a visa to the U.S. and how long they can stay.)
While a few of the provisions of this order have already taken effect, such as the suspension of refugee admissions, refusal to admit anyone from a country thought to support terrorism (including green-card holders), and possibly requirement of visa interviews, most of the sections will take several months to implement. And the order's ultimate effect will depend on the outcome of a good deal of pending litigation.