As indicated in our alert from Saturday, February 4th, on Friday, February 3rd, the United States Federal District Court in Seattle, Washington issued a temporary restraining order (TRO) temporarily invalidating key portions of President Trump’s January 27 Executive Order, and enjoining enforcement at all United States borders and ports of entry pending further orders. On Saturday, February 4th, the Department of Justice appealed the District Court decision, requesting an emergency stay of the TRO. The 9th Circuit Court of Appeals denied the DOJ’s request for a stay of the TRO on the same day that the appeal was filed, February 4th. A full hearing of the appeal could occur this week, so although the TRO is currently in effect, we remain in a fluid situation.
The TRO stopped the enforcement of the following sections of the Executive Order:
- Section 3(c), suspending entry into the United States by persons — including both immigrants and nonimmigrants — from the listed seven countries for 90 days from the date of the order;
- Section 5(a), suspending the US Refugee Admissions Program (USRAP) for 120 days, effectively refusing refugees from any of those seven countries;
- Section 5(b), prioritizing refugee claims made by individuals on the basis of religious-based persecution where the individual is in the minority religion in the country of nationality;
- Section 5(c), suspending entry of nationals of Syria in particular as refugees; and
- Section 5(e), to the extent that it purports to prioritize refugee claims of certain religious minorities.
Following issuance of the Executive Order, the Department of State (DOS) provisionally revoked all valid visas of nationals of the seven affected countries. Following the TRO, the DOS has lifted this provisional revocation, and accordingly those visas are now valid for travel to the US, as long as the visa holder is otherwise eligible for admission. Some individuals had their visas physically cancelled as a result of the Executive Order. According to the Department of State, those individuals must apply for a new visa at a US embassy or consulate, unless they receive an I-193 Application for Waiver of Passport and/or Visa from Customs and Border Protection (CBP) upon arrival to the US. CBP has confirmed that it has communicated with the airlines to instruct them to permit boarding of individuals from any of the affected countries who present appropriate documentation.
Importantly, the TRO does not invalidate Section 8(a) of the Executive Order, which requires that all individuals undergo an interview before receiving a visa from a US consulate or embassy, but it also acknowledges the statutory existence of the visa interview waiver exception (the so-called “dropbox” program). Therefore, it appears that although a visa interview may still be waived, all visa applicants should be prepared that they may be required to attend an interview.
As this continues to be a fast-moving situation, please stay tuned for further updates regarding the status of the Executive Order and the ongoing litigation surrounding it.
We will continue to update our readers as additional information regarding these significant U.S. immigration changes becomes available.
» Mintz Levin Immigration Practice