Over the past 48 hours there has been a flurry of immigration related activity in the news, at our airports. Immigrants traveling to, or returning from visits abroad have been put through increased scrutiny at international airports. Here is a quick update and what you need to know.
President Trump issued an Executive Order on January 27, 2017 (Protecting the Nation from Foreign Terrorist Entry into the United States). This Executive Order (EO) greatly curtails the ability of certain individuals from Muslim majority countries to visit/return to the United States.
As of this writing, this EO is no longer available on the White House’s website – https://www.whitehouse.gov/briefing-room/presidential-actions/executive-orders
Last night, the Secretary of the Department of Homeland Security, John Kelly issued a clarifying statement that states:
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.
This morning, on NPR’s morning edition, American Immigration Lawyers Association (AILA) President, Mr. William Stock provided details of several lawsuits that have been filed in Federal Courts limiting the reach of the Executive Order. Apparently however, CBP is using the EO to allow “Green Card” holders entry into the U.S. on a case by case basis. In other words, they are undergoing review and vetting at the Ports of Entry (POE).
Who is Affected?
- The Executive Order applies to all individuals “from” the 7 designated countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. That includes Legal Permanent Residents (LPRs), nonimmigrant visa holders, immigrant visa holders, refugees, derivative asylees, Special Immigrant Visas (SIVs), etc.
- Anyone who holds a passport from a designated country is considered as being “from” the designated country. This includes dual citizens who hold passports from a designated country, as well as a non-designated country.
- CBP will be processing people based on how they present themselves at primary inspection.
- The Executive Order may not apply to people who merely traveled to designated countries. However, they could face increased scrutiny (In fact, INA §217(a)(12) includes restrictions on people who travel to the designated countries)
- Legal Permanent Residents: There appears to be some limited discretion for DHS to admit LPRs on a case-by-case basis, and following a thorough security review. LPRs will be allowed to board planes. Their cases will be adjudicated at the POE.
- Nonimmigrants: Nonimmigrants will be allowed to withdraw their application for admission. Expedited removal will generally only be used for those individuals who do not wish to withdraw their application for admission.
Form I-407, Record of Abandonment of Lawful Permanent Resident Status:
“Green Card” holders (Legal Permanent Residents – LPR) SHOULD NOT, under any circumstance surrender their green cards at the POE.
Please be advised that an individual does not lose LPR status just because he/she has remained abroad for an extended period of time. There is a legal process involved in adjudicating abandonment. There is no immediate legal consequence for a refusal to sign the Form even if asked to do so by a CBP or other DHS Officer. The matter can always be revisited before an Immigration Judge should the Department of Homeland Security decide to pursue the matter after the individual leaves the airport. The burden of proving abandonment is on the Government and travelers should be aware of their rights.
There have been rumors that U.S. Consulates worldwide are issuing 221g notifications to applicants irrespective of the merits of their application and that denials are increasing under the new administration. We have seen no evidence that this is true, or that it is based on a change in policy at the Department of State (the Department that controls U.S. Consulates worldwide). We are monitoring this situation and will provide updates as and when we obtain them.