On Friday, January 27, 2017, the President signed a further Executive Order mandating:
1. Additional screening for all U.S. immigration applications
2. Suspension of the Visa Interview Waiver Program
3. A travel ban on the nationals of 7 predominantly Muslim countries and all refugees
4. Expediting completion and implementation of a biometric entry-exit system
5. A ban on refugees seeking safety.
On NewsRadio KFBK, on KGO News, and on Voice of America, Navid Dayzad explained today the ramifications.
This Order was met with chaos across the U.S. this past weekend, particularly at U.S. airports, amid a flurry of protests and legal action. We will continue to use all available mediums to advocate for justice, fairness, and equality for our clients and all immigrants to the U.S. We assure our existing clients that may be affected by this Order that our firm will be contacting you directly as soon as possible to discuss the implications of the Order and to advise you accordingly.
Following is a summary of the key components of the President’s third Executive Order on immigration:
1. Screening of all Immigration Applications
Federal agencies have been directed to develop screening standards and procedures for all immigration benefits to identify fraud and detect whether a person intends to do harm. Also, agencies must create a process to evaluate the person’s “likelihood of becoming a positively contributing member of society” and “ability to make contributions to the national interest.”
This kind of screening will be time intensive, require additional government resources, and will duplicate investigations that are already being undertaken with respect to security issues.
We can expect this will result in significant backlogs at USCIS offices at the local and service center level, consular processing backlogs, and crowding of secondary inspection sites at U.S. Customs and Border Protection (“CBP”) ports of entry, especially if CBP is required to conduct this level of screening.
Further, these standards are not required by law (except in very limited circumstances). The U.S. already has a robust system in place for vetting all visa applicants, particularly after the expansion of security screening after 9/11. All individuals are required to have biometrics captured, and to have fingerprints taken to confirm their identity at interviews with both the Department of Homeland Security (“DHS”) and Department of State (“DOS”).
Finally, how does the government purport to measure “likelihood of becoming a positively contributing member of society” and “ability to make contributions to the national interest?” Such a determination is inherently subjective and will create significant and often insurmountable barriers for many individuals. CBP officers, if required to conduct this screening, are neither trained nor qualified to make determinations on whether a person will contribute to society or the national interest.
Likely there will be litigation challenging whether the President has over-reached his executive powers by substantially changing immigration laws and side-stepping Congress. We will monitor how these changes are implemented through our liaisons with US Citizenship and Immigration Services.
2. Suspension of the Visa Interview Waiver Program (“VIWP”)
Presently, low risk travelers who have already been vetted by the government qualify for the Visa Interview Waiver Program (not to be confused with the Visa Waiver Program, which is not impacted at this time). Such low risk travelers include elderly persons aged over 80, children aged under 14, and individuals who have demonstrated a track record of stable employment and travel and/or a previous determination of low security risk.
Suspending the VIWP will inevitably harm U.S. Embassies and Consulates abroad by ballooning already lengthy interview backlogs at Consular posts, overburdening their limited resources, and reducing the overall quality of consular interviews, particularly at high volume posts in India. Limited Consular resources should be devoted to high risk or new visa applicant cases where eligibility or security is a concern. While expanding the Consular Fellows Program to enhance resources at Consular posts may help, it is not a quick fix. Consular Fellows must be hired, trained (including language training in some cases), and obtain security and country-specific clearances. It will also take a significant amount of time and resources to place them at consular posts.
The VIWP is largely utilized for employment-based nonimmigrant applicants, such as H, O, P, and L, who are simply seeking a renewal visa. Requiring everyone to go through an interview will impede the ability of employment based visa applicants to obtain a visa and return to the U.S. quickly, which will disrupt U.S. businesses and the flow of commerce. Travelers are advised to plan travel far in advance or risk not being able to return to work in the U.S. for extended period, causing an economic impact for the U.S.
For the near future, the strategy we are advising for our clients is to apply for their travel visas through an in-person interview at the U.S. consulate, rather than opting for the VIWP.
3. Immediate 90-day suspension of immigration benefits for individuals from 7 predominantly Muslim countries (Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen)
This “Muslim ban” component of the President’s Executive Order is particularly troubling because it ignores research and facts and is based on combination of an unfounded fear, debunked information, and xenophobic pressure.
When first published, this order immediately suspended the immigrant and nonimmigrant entry of nationals from these countries for at least 90 days. In summary:
NON-IMMIGRANTS (temporary immigration status): Non-immigrants from the effected countries are now unlikely to be able to board an airplane to enter the U.S.—even if they have a valid visa. After 90 days, travel is not automatically reinstated. Instead, DHS is required to report whether these countries have provided information “needed … for the adjudication of any … benefit under the INA … to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat.” If not, the country would have 60 days to comply, or the travel ban will become indefinite. In the meantime, Dept. of State citizens of one of these countries cannot apply for new visas.
Fortunately, those non-immigrants who were already in transit and arrived in the hours following the executive order, will not be detained or deported for the time being, thanks to a court order explaining such actions are likely unconstitutional.
LAWFUL PERMANENT RESIDENTS (green card holders): There appears to be some limited discretion for DHS to admit green card holders on a case-by-case basis, following a thorough security review. They will also be allowed to board planes. Their cases will be adjudicated at the port of entry. In a statement on January 29, 2017 by DHS, Secretary John Kelly confirmed: “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.”
U.S. DUAL CITIZENS: It is unclear whether the Order impacts US citizens who show their US passports, but may also have a passport from one of the effected countries.
OTHER: The Order also applies to nationals of these countries who are refugees, derivative asylees, and Special Immigrant Visa holders. It does not apply to nationals of other countries who merely traveled to one of the designated countries.
This part of the President’s Executive Order caused a swell of protest and legal action across the U.S. this past weekend with the landscape changing almost by the hour. There is growing concerns that other countries may be added to the list, as the Order also calls for the exclusion of people who “would place violent ideologies over American law” or “who engage in acts of bigotry or hatred (including ‘honor’ killings, other forms of violence against women, or the persecution of those who practice religions different from their own)….” This language is vague and appears highly susceptible to discriminatory abuse against all people of Muslim faith.
This Order will not make America safer. Instead, it will harm U.S. families who must wait for their husbands, wives, children, mothers, and fathers to complete the already-lengthy immigration process. It also means that intending immigrants and their U.S. families will need to remain abroad longer, often in dangerous situations. It will also lengthen processing times and disrupt the operation of U.S. businesses that rely on such applicants. Some industries will be particularly impacted, such as the medical industry, where there is already a shortage of nurses and doctors.
I have already been fielding questions from existing clients who are very concerned about whether their employees will be effected and impact on their work assignments. I have also been fielding questions from immigrant clients and non-clients regarding what will happen to them if they travel and what happens to their relatives who are expecting to arrive in United States. I am recommending that affected clients who have not yet departed the U.S. yet do not travel internationally if possible.
4. Biometric-Entry Exit:
The Order also directs agencies to expedite the completion and implementation of a biometric entry-exit system and includes reporting requirements. The completion of an integrated biometrics entry-exit system will require significant funding and will require additional resources.
While biometrics have been collected from most individuals upon entry to the U.S. since 2009, it has been much more challenging to implement a system for collecting data from those departing from the U.S. DHS has identified three primary obstacles that have delayed implementation of the collection of exit data: (1) collection of such data would disrupt the flow of travelers through air terminals; (2) air carriers and airport authorities have so far blocked testing of a method that incorporates the collection of biometric data into passenger processing at the departure gate; and (3) questions about which personnel would be responsible for collecting departure data.
Even with a system in place, the benefits of knowing who has left the country are not as significant as knowing who is entering the country. For example, while biometric data collection upon exit might give better information about who has overstayed a period of authorized admission, it would not tell law enforcement where the individual is located within the country.
5. Refugees:
The President’s Executive Order further halts all U.S. refugee admissions for four months–and Syrian refugee admissions indefinitely. This component is not only troubling for its lack of compassion and potential breach of international agreements, but is simply unfair and unjust. As explained by William A. Stock, President of the American Immigration Lawyers’ Association: “Refugees are already required to go through an extremely rigorous vetting and security clearance process. These people are literally fleeing for their lives and the lives of their children. Shuttering our refugee program in a time of great need is the wrong thing to do. Rather than slamming the door, we should be welcoming them and offering the protection which America has historically provided as the beacon of light to the world. President Trump makes it seem like these changes will be temporary by ‘suspending’ programs, but based on the positions he has taken and the stringent conditions imposed, the U.S. refugee program will be severely crippled.”
Conclusions:
This Executive Order is of grave concern to the immigration law community for the reasons outlined above. These bans and additional scrutiny measures will not only lengthen delays in case processing, but will likely impact U.S. employers and the U.S. economy and strain foreign and diplomatic relations, potentially putting all Americans, including citizens, at risk.
As AILA Executive Director Benjamin Johnson cautioned, “Make no mistake: This Executive Order is a thinly veiled effort to make good on the President’s promise to ban all Muslims from coming to the United States and to end our long, proud history as a leader in providing protection to those fleeing persecution. Discrimination is anathema to the principles upon which our nation was founded, is contrary to the principles of the Constitution, and has no place in a just and free society.”
Dayzad Law will be available to all our clients—existing and new—as we navigate this new terrain, and we will use all means at our disposal to advocate for justice, fairness, and equality for all.