President Trump has issued a ninety (90) day ban on entry to the United States of citizens of Iran, Iraq, Syria, Sudan, Somalia, Libya and Yemen. The ban applies to all such citizens regardless of whether the individual holds a valid work visa, refugee status, or a Green Card (Lawful Permanent Residence). Although not specifically mentioned in the Executive Order (the “Order”), it has been reported that dual citizens of the U.S. and one of the listed nations have had difficulty entering the U.S.
Many of the universities, hospitals, and businesses that FordMurray represents employ scientists, professors, engineers, physicians and other professionals who hold these citizenships. To be clear, this entry ban applies to these employees.
FordMurray advises clients who are citizens of the listed nations to remain in the U.S. until the ban is lifted or until clear procedural guidance is provided to the Department of Homeland Security to allow for the entry of work visa holders, Green Card holders, and dual citizens. Although CBP Inspection Officers have discretionary authority to allow the entry of any individual on a case-by-case basis, it is unclear whether these entries will be allowed in a consistent, predictable manner, or indeed, whether they will be authorized at all.
Late Sunday evening, the Secretary of Homeland Security issued a statement regarding the entry of Green Card holders. He stated that, “In applying the provisions of the president’s executive order, I hereby deem the entry of lawful permanent residents to be in the national interest. Accordingly, absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status will be a dispositive factor in our case-by-case determinations.” Unfortunately, this statement falls short of providing full travel authority for Green Card holders and given that the text of the Order specifically applies to “Immigrant Visas”, meaning Green Cards, we urge strong caution to Green Card holders before departing the U.S. At the very least, long delays in entry processing should be expected and diligence in clearly presenting immigration documentation and foreign travel itineraries should be employed.
We extend our advice to remain in the U.S. to citizens of Middle Eastern nations or nations with significant Muslim populations. The Order specifically calls for inclusion of other nations into the ban after a sixty (60) day review period. As we explain below, the President appears to have broad authority to impose, expand, and renew such entry bans.
Does the President have the authority to impose this ban?
It appears that the President does have the legal authority to impose this ban under federal statutory law. Pursuant to U.S. Code § 1182 – Inadmissible aliens: “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”
The statute provides broad discretion to the President to bar the entry of citizens of any nation. Therefore, the current ban could very well withstand a challenge in federal court. The ban could also be lengthened or applied to additional countries by further executive action.
Does the pending challenge in federal court suspend the ban?
No, it does not. Currently, two federal judges have provided a temporary stay of the ban to those travelers who were detained at the airport or in transit when the ban was imposed. The judicial stay does not apply to future travelers.
Will the ban be overturned by the federal courts?
Given the broad discretionary authority provided to the President by the statute cited above, it is doubtful that ban will be overturned, but this cannot be determined with any certainty at this point in time. Dual citizens of the U.S. and Green Card holders may be more successful in challenging the travel restriction on constitutional grounds. However, FordMurray does not recommend international travel to any of the affected groups at this time.
Does the ban apply to other immigration benefits such as extending current work visa status or applying for a Green Card?
No, the Order applies only to entry to the U.S. The ability to extend current work visa status or to apply for Lawful Permanent Residence or U.S. Citizenship has not been impacted. However, the Order does call for a review of the conferral of such immigration benefits to the affected groups.
What can I do to protect my immigration status and ability to travel in the future?
Avoiding international travel is the wisest course at this juncture. If you have the ability to obtain a more durable immigration status such as Lawful Permanent Residence or U.S. Citizenship, taking steps to do so may improve your ability to remain in the U.S. and travel internationally in the future without interruption.
FordMurray will continue to monitor these shifts in immigration law and will issue further Client Alerts to provide guidance on how best to navigate future changes.
If you represent a business, we can help you with your immigration needs. Immigration law is complicated, to say the least, and we specialize in helping businesses make sense of existing laws and comply with fastchanging requirements.
Whether it’s hiring a foreign national and helping that individual immigrate into the United States, assisting an employee already living in the US with an immigration status, helping your business stay in compliance with immigration programs like I9 or EVerify, or assisting with other immigration matters… we want to help!
Contact us today for more information!