Trump administration announces entry and visa ban for citizens of certain countries

On January 27, 2017, the Trump administration issued a new Executive Order that temporarily suspends from entry to the US persons who are nationals of Iraq, Syria, Sudan, Iran, Somalia, Libya, and Yemen, with very limited exceptions. It also temporarily suspends for the next 120 days the Refugee Admissions Program and restricts the visa interview waiver program.

While generally prohibiting entry into the United States by nationals of the affected countries (including those who hold dual citizenship and reside in a third country), the Executive Order allows the Department of Homeland Security ("DHS") on a case-by-case basis to issue visas or other immigration benefits to persons whose visas and benefits are otherwise blocked. On January 29, 2017, DHS made a statement that absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status (i.e. green card holders) would be granted permission to enter. It remains to be seen how implementation of the Executive Order with respect to "green card" holders will function in practice.

Those holding dual citizenship in certain countries with close relations to the United States may be exempted from the Order's prohibitions; reportedly such treatment will be extended to citizens of the United Kingdom and Canada, and other US allies appear to be seeking similar treatment for their dual nationals. Administration statements concerning several aspects of the Order, including treatment of dual nationals and "green card" holders, suggest that the parameters of the policy and its application remain in a state of flux in certain respects.

The new Executive Order resulted in immediate litigation in US courts challenging its constitutionality. At least four US federal courts across the nation have enjoined the Administration from implementing the order in certain respects, including insofar as it contemplated the immediate return of individuals holding otherwise valid visas or "green card" status. The DHS stated that it intends to follow court orders but it has not specified what rights travelers have in entry into the US based on their immigration or visa categories. The DHS stated that it is also working with airline partners to prevent travelers blocked by the executive order from boarding international flights to the US.

There will likely be efforts to repeal the Executive Order in Congress.

It remains to be seen how the review of various aspects of US immigration policy which is mandated under the Executive Order would be carried out, and the impact of such a review. In the meantime, given the broad impact of the Executive Order on travelers holding citizenship in one of the affected countries, Herbert Smith Freehills' New York office continues to closely monitor developments in this area.