On March 5, 2017, the White House issued a revised Executive Order (New EO) entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.” The New EO revokes and replaces the President’s prior EO of the same name, which which was issued on January 27, 2017 (January 27 EO) to significant consternation and confusion and remains stayed by court order.
Essentially, the New EO is a do-over, a mulligan, the adult version of the haphazard January 27 EO, which is now officially revoked. The New EO is a scaled back version of the January 27 EO and seeks to avoid the various constitutional and logistical issues that plagued its predecessor. The New EO still contains toned-down versions of the two major components of the original ban: (1) a multi-country visa issuance and travel ban and (2) the temporary halting of the refugee resettlement program.
The New EO is different than the January 27 EO ban in the following important ways:
- Delayed Effective Date: The January 27 EO was effective on the day it was signed. The New EO does not become effective until March 16, 2017, reducing the risk of travelers being denied entry to the United States or subject to mandatory detention at the border.
- Legal and Factual Groundwork: Of note, the new travel ban contains significant background and factual arguments that attempt to lay groundwork for the need for the ban and the legal foundation for the president’s authority to impose it. This includes a country-by-country overview of the threats inherent in each designated country and a summary of the supposed threat imposed by foreign born immigrants in the United States. Overall, it is written with a more balanced and legal tone, drawing heavily on arguments found in the government’s responses to earlier legal actions against the January 27 EO.
- Visa Interview Waiver Program – This EO, like the January 27 EO, immediately suspends Visa Interview Waiver Programs (also known as the “drop-box”) implemented by various US consular posts. Most nonimmigrant visa applicants will be required to undergo an in-person interview unless exempted by statute.
- More Narrowly Tailored Travel Ban: Whereas the original ban’s broad language was initially meant to include nearly all nationals of the original designated countries, the new travel ban explicitly excludes the following individuals:
- Citizens of Iraq (designated countries now include only Iran, Libya, Somalia, Sudan, Syria, and Yemen);
- S. green card holders (lawful permanent residents), no matter their nationality;
- Dual Nationals of the six designated countries who are traveling on the passport of a non-designated country;
- Nationals of the six designated countries who held valid visas on the effective date of this EO or the prior EO, January 27, 2017. It is presumed that Department of State will not provisionally revoke valid visas as occurred pursuant to the January 27 EO;
- Individuals already granted asylum or refugee status.;
- Anyone with a document other than a visa valid on March 16, 2017 (such as an advance parole document) that permits him/her to travel to the United States and seek entry or admission;
- Anyone traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas;
- Iraq is a “Special Case”: In removing Iraq from the list of designated countries, the New EO recognizes the progress made by that country since the January 27 EO was introduced and the special relationship between the U.S. and Iraq. While exempting it from the explicit travel ban, the New EO still calls for “additional scrutiny” of Iraqi applicants to ensure safety.
- Scaled Back Refugee ban with broader exemptions: The January 27 EO originally suspended all refugee entries for 120 days and Syrian refugee entries, indefinitely, and provided special benefits for certain “religious minorities”, which opponents saw as benefitting Christian minorities in Muslim-majority countries. Opponents called the immediate halt of refugee entries a violation of the due process of approved refugees, which included some already flying to the United States when the January 27 EO was issued. Singling out Syrian refugees and religious minorities was seen by many as a constitutional overreach. The New EO seeks to avoid such complaints in the following ways:
- The 120 day suspension of refugees entries and refugee adjudications equally to all countries (removes the indefinite suspension for Syria),
- The suspension does not apply to refugee applicants who have been formally scheduled for transit before the new EO becomes effective on March 16, 2017,
- Removing prioritization of refugee cases for religious minorities.
- Broader Exceptions and Waiver Authority: The New EO contains various exceptions and waivers that make it, overall, a more humane document than the January 27 EO, although opponents see the changes as legal maneuvering to avoid lawsuits and decry the New EO’s underlying purpose as a de facto Muslim Ban. Still, aside from the various carve outs mentioned above, the Secretaries of State and Homeland Security may grant case-by-case waiver when in “the national interest to do so.” Although regulatory waivers exist for immigrant and nonimmigrant entrants and visa applicants, it is unclear whether this waiver authority under the New EO will include a new formal application process or will piggy-back on the existing methods.
Opponents of the new EO have already threatened to fight its implementation and argue that it is merely a Muslim ban in national security clothing. The White House has countered that removal of the controversial components, and laying a stronger groundwork in facts and law, make this New EO religion neutral and well-within the President’s broad immigration authority. Had the January 27 EO been crafted like the New EO, it is possible that opponents’ challenges would have found less firm legal footing. Court rulings in the coming days and weeks will determine whether New EO will stumble or stand fast.