Many clients and others ask whether they should continue immigration processing or use international advance parole travel privileges, given the Executive Order issued by Donald Trump on January 27, 2017, that bars these 7 countries from entering the U.S. for a period of 4 months: Iraq, Syria, Iran, Sudan, Libya, Somalia and Yemen.

The fear is that foreigners who are not yet in the U.S. may not be able to access the U.S. any longer. Here are the main points:

1. Immediate affect is on applicants from those 7 countries only. Anyone from the 7 countries should seek legal advice before proceeding further.
2. It is OK to travel outside the U.S. on a green card, visa, or advance parole travel permission if you are not from one of the 7 countries.

Waiting Does Not Help

The obvious choice should be to move quickly now than to wait further restrictions. I don’t see our immigration system making things easier for foreigners as time goes on. Seek attorney advice to get a clear picture of your circumstance and chance of success.

There is no effect on visa processing generally and no affect on the ability to use advance parole to reenter the U.S. after a short stay abroad for those who are not from the countries excluded. With respect to those 7 countries, there is a provision in the Executive Order which allows for entry to the U.S. on a case-by-case basis:

(g) Notwithstanding a suspension pursuant to subsection (c) of this section or pursuant to a Presidential proclamation described in subsection (e) of this section, the Secretaries of State and Homeland Security may, on a case-by-case basis, and when in the national interest, issue visas or other immigration benefits to nationals of countries for which visas and benefits are otherwise blocked.

It seems that the ban is not all-encompassing for the 7 countries, but it is very likely that immigration officers will not give allowances easily.  Families in flight when the order took effect were blocked.  The culture fostered among immigration border agents is to be exclusive and not inclusive.

The Executive Order excludes members of the 7 countries on grounds that there is not a good vetting system within the target countries. The U.S. government wants good background information on all foreigners seeking access to the U.S. Certain countries do not have good internal mechanisms to monitor its citizens and so President Trump has decided to exclude foreigners from countries until a better vetting system is established.

Emphasis on Proving Good Intentions Toward the U.S.

A major shift of the Trump Administration stated in the Executive Order is to require that a foreigner must show he or she is acting in the best interests of the U.S. government in order to obtain a visa. Up to this point, immigration officers would watch for concerns and then exclude foreigners who they believe are a threat to our national security. Now, more emphasis is put on proving good intentions toward the U.S.

There are some peculiarities with the Executive Order. For example, it states this Executive Order is justified because refugees are a threat to U.S. security interests:

Numerous foreign-born individuals have been convicted or implicated in terrorism-related crimes since September 11, 2001, including foreign nationals who (…) entered through the United States refugee resettlement program.

I am not aware of a case where a refugee to the U.S. has been implicated in a terrorist crime. The refugee program seems to have worked well for U.S. interests and international obligations for many years.

The order also states it does not want to admit foreigners to the U.S. who are hostile to basic human rights:

… the United States should not admit those 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) or those who would oppress Americans of any race, gender, or sexual orientation.

However, the focus is not to protect foreigners who are persecuted based on race, gender, or sexual orientation. Rather, the main focus seems solely to be to grant priority to “minority religions.”

(b) Upon the resumption of USRAP admissions, the Secretary of State, in consultation with the Secretary of Homeland Security, is further directed to make changes, to the extent permitted by law, to prioritize refugee claims made by individuals on the basis of religious based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality.

This is being interpreted by many to mean that Christians will move to the front of the line once the refugee program is re-instituted. Apparently, those who are targeted based on race, gender, or sexual orientation would not move to the front of the line. The strong preference to target Christians for inclusion is likely true because the total number of refugees allowed into the U.S. during 2017 is reduced to 50,000. Reduce the total and give preference for some suggests the large majority of refugees will be Christian and not Muslims.

During the next 4 months, various Departments and agencies will work together to figure out a better vetting system that will allow for more complete vetting. Going forward, foreigners at visa interviews must be prepared to show how they will make a positive contribution toward U.S. interests.

This program will include the development of a uniform screening standard and procedure, such as in-person interviews; a database of identity documents proffered by applicants to ensure that duplicate documents are not used by multiple applicants; amended application forms that include questions aimed at identifying fraudulent answers and malicious intent; a mechanism to ensure that the applicant is who the applicant claims to be; a process to evaluate the applicant’s likelihood of becoming a positively contributing member of society and the applicant’s ability to make contributions to the national interest; and a mechanism to assess whether or not the applicant has the intent to commit criminal or terrorist acts.

Liberty Principles Do Not Extend Beyond Our Borders

This tact encourages consulate officers to further scrutinize foreign applicants. Not only will there be more vetting among police agencies and countries, but consulate officers will be directed to challenge foreigners at interviews whether the foreigner is a good person. Foreigners already very often complain they are not treated with dignity by many immigration officers and this Executive Order encourages officers to be harsh as a matter of policy.

Immigration has never been inclusive. The inscription on our Statue of Liberty is taken from a poem. It is inspirational, but not government policy. The U.S. policy of exclusion and discrimination has been in effect since before slavery, sometimes rightly and sometimes wrongly. Exclusivity is incorporated into our U.S. Constitution. The Electoral Process was intended to modify the voting will of the majority. It is the Bill of Rights that carves out individual liberty principles. But, those rights generally do not extend beyond our borders.  Instead, the President is charged with enforcing laws at our borders and to exclude as necessary in the interests of national concern and sovereignty.

Very often, immigration issues are not in the spotlight because foreigners do not vote. They have no voice in government politics. It is important for citizens to speak up and for attorneys to go to court when Executive policy seems to be subterfuge, a ruse, for unfair treatment.

— Allan S. Lolly, Esq.

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