Update on President Trump’s Immigration Orders

by Jason Dzubow on February 1, 2017

Since President Trump began issuing executive orders (“EOs”) on immigration last week, there has been outrage, confusion, and chaos within the immigration community. The EOs were clearly not very well thought out, and seem to have been written by someone lacking a comprehensive understanding of America’s immigration law. As a result, several courts have blocked portions of the EOs, and the Administration has walked back one of the more problematic elements of the new rules. There will be time later for an analysis of how all this affects our country’s security and moral standing, but since we are still in the middle of it, and since the situation is rapidly changing, I wanted to provide an update to my post from last week, to help non-citizens understand their situation.

I’ve never felt so proud to be Canadian! Oh, right, I’m American. Woo-f’n-hoo.

As I wrote last time, the EOs’ most damaging effects are on people trying to come to the United States. For people who are already here, the effect is less dramatic (and not all-together clear). Also, I believe nothing I wrote last week is obsolete, so if you have not read the previous posting, please do, as today’s posting is meant to supplement what I wrote last time.

Lawful Permanent Residents from Countries of Particular Concern: In some ways, the worst part of the EOs is how they affected lawful permanent residents (“LPRs” or people with green cards) who are from “countries of particular concern,” meaning Iraq, Syria, Sudan, Iran, Somalia, Yemen, and Libya (perhaps more countries will be added to this list later).

DHS originally interpreted the EOs to mean that LPRs from these countries would be turned back at the border. Apparently, at least some LPRs were rejected at the airport and sent back to their point of origin (Customs and Border Protection or CBP claims that only two LPRs were turned back). However, after (partially) successful litigation by the ACLU and others, DHS Secretary John Kelly issued a statement that “the entry of lawful permanent residents [is] 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 means that if you are an LPR from one of the listed countries, you should probably (but not certainly) be able to re-enter the United States, but you should expect delays upon arrival, as your case will be individually reviewed to determine whether you present a threat to the United States. Whether you will, in fact, be able to enter the U.S. is not guaranteed, and how long the delay will be at the airport is currently unknown (DHS claims that entry into the U.S. should be “swift”).

Given all this, it is clearly a bad idea for anyone with lawful status in the U.S. who is from one of the listed countries to travel outside the U.S. at this time. If you are from one of the listed countries and are currently outside the U.S., you should be able to return if you are an LPR (if you have some other status in the U.S., especially a non-immigrant status, you likely will not be able to return at this time). Because there is so much uncertainty for people from these countries, it is best to remain in the United States or, if you are outside the country and are able to return, to return as soon as possible.

People from Countries of Particular Concern Waiting for an Immigration Benefit: For people in the U.S. who are from “countries of particular concern” and who are waiting for an immigration benefit, such as asylum, a work permit or a green card, the situation is also unclear.

Section 3 of the EO on terrorism is titled, “Suspension of Visas and Other Immigration Benefits to Nationals of Countries of Particular Concern” and states that the U.S. government should conduct a review to determine whether additional information is needed to adjudicate visas, admissions, and “other benefits under the INA (adjudications)” for people from countries of particular concern. The reference to “other benefits under the INA” or Immigration and Nationality Act – the immigration law of the United States –would presumably include benefits such as green cards, asylum, and work permits, though the EO does not specifically define what it means. Also, while the EO suspends immigrant and non-immigrant admissions for 90 days for people from countries of particular concern, it makes no other mention of suspending immigration benefits to such people who are already in the U.S. As a result, it is unclear whether, or for how long, USCIS (the agency that administers immigration benefits) will suspend such benefits for people from the listed countries.

Unfortunately, some leaked–but thus far unconfirmed–emails from USCIS indicate that the agency has decided to suspend all final decisions in cases for people from the listed countries. According to one news source:

“Effectively [sic] immediately and until additional guidance is received, you may not take final action on any petition or application where the applicant is a citizen or national of Syria, Iraq, Iran, Somalia, Yemen, Sudan, and Libya,” wrote Daniel M. Renaud, associate director of field operations for DHS’s office of U.S. Citizenship and Immigration Services. “Field offices may interview applicants for adjustment of status and other benefits according to current processing guidance and may process petitions and applications for individuals from these countries up to the point where a decision would be made.”

In other words, while interviews can take place for such people, no decisions–to include approval, denial, withdrawal, or revocation–will be made “until further notice.” I can report that USCIS is conducting interviews for people from countries on the list–my Syrian asylum client was interviewed yesterday–but I have not heard anything official yet about whether decisions will be issued. If this is accurate, it means decision will be suspended, at least for a while, on asylum cases. Whether it will affect applications for work permits, which are issued while waiting for a final decision on an asylum case, is less clear. Hopefully, it will not, and hopefully, this suspension will be temporary.

I-730 Petitions: If a person is granted asylum, she can file an I-730 (follow to join) petition for her spouse and minor, unmarried children. For family members from countries on the list, the EO applies, and thus the State Department “has stopped scheduling appointments and halted processing for follow-to join asylee beneficaries who are nationals or dual nationals of Syria, Iraq, Iran, Libya, Somalia, Sudan, and Yemen. Further information on appointments for follow-to-join refugees will be available in the future.” In other words, family members of asylees from the listed countries cannot currently come here based on I-730 petitions, but how long this prohibition will last is unknown. In contrast to the State Department website, CBP indicates that I-730 petitions will be adjudicated on a case-by-case basis. How this will ultimately play out, we do not know, but there is still hope that family members overseas will be able to join the principal asylee in the United States. Also, the visa ban is set to expire after 90 days, and so we can hope that once procedures are reviewed, travelers from “countries of particular concern” will be able to come to the United States to join their family members.

People from Other Muslim Countries: At this point the EOs are limited to the seven listed countries. People from other Muslim countries are not affected. However, the EOs require government agencies to determine whether additional countries should be added to the “banned” list. For this reason, if you are a non-citizen, and particularly if you are from a predominately Muslim country, it is important to keep an eye on the news, just in case more countries are added to the list. A good source for up-to-date information about the EOs, and the lawsuits opposing them, is the American Immigration Council’s website, here.

So that is the update for now. It is important to understand that the “ban” described in the EO is temporary, and that the people mainly affected are nationals from “countries of particular concern.” Of course, we will have to see how this plays out going forward, but it is important to remain calm and patient, and to keep hoping–and working–for something better.

[Update for February 2, 2017: I have heard an unconfirmed rumor out of the State Department that additional countries will be added to the list of banned countries. This is not confirmed, but here is the message I received: “There is a draft order being circulated at the State Department. The order has language extending the list of banned countries to Egypt, Lebanon, Afghanistan, Pakistan, Philippines, Mali, Colombia, and Venezuela.” I suggest people from those countries pay careful attention to the news, in case the countries are added to the list, and I suggest that people from these countries not travel outside the U.S. until we have some clarification.]

{ 19 comments… read them below or add one }

Suraj March 26, 2017 at 2:16 am

Hi Jason,
I have my sister and her husband along with their two children who have already received their formal tourist visas from the embassay of the US in their country Which is not any of the muslims countries. My sister wants to apply for an asylum as they have been in the state of threatening and fear of persecution. My sister wants to come first by the month of may and chexk with the lawyers about the possibilities and chances and methods of filing an asylum. What i am concerned is if she comes alone first and returns after a few months and again comes back with her family and later apply for an asylum, will her recent visit to the states affect her asylum questioning why did you not apply the first time you were here very recently? And the other thing is what do you actually reccomend to her, if she should come along with her family with a certain purpose and apply for an asylum or should she wait for any upcoming presidential order as soon as the immigration office opens after 120 days time. Thank you jason for all your previous help. I want to know this because she’s trying to have her tickets booked. Thanks

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Jason Dzubow March 27, 2017 at 6:45 am

If she comes to the US and then returns to her country, it could negatively affect her case. At the minimum, she will need to explain this rerun trip, and I have seen cases where it creates real problems. It would be better for her case if she did not return home. Maybe she and her family can just come all together the first time, but that is up to her. Maybe she has a good reason for coming here first and then returning home. But from the point of view of making a strong case, that may make things worse. As for any upcoming presidential orders, we do not know about that, so she will just have to make the best decision she can given the info available. Take care, Jason

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Swati March 13, 2017 at 12:32 am

I’m Swati I applied for asylum on Jan 18 2017 got my biometerics on February 22 new 2017 how long does it take for it to get my EAD to get

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Jason Dzubow March 13, 2017 at 9:23 am

Check your asylum receipt, which tell you the date USCIS received the application. You can apply for the EAD 150 days after that date, and it usually takes 2 to 4 months to get the EAD after you apply. Take care, Jason

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nana March 9, 2017 at 12:46 am

HI JASON. ACTUALLY I APPLY FOR ASYLUM CASE SINCE FEB 2015 in Arlington office.but it seems like they stop making interviews .because I checked every month no change in the affirmative bulletin since September they still on applicant of January2014 Is this true .I need to know correct information….thanks

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Jason Dzubow March 9, 2017 at 7:09 am

They have been doing some interview for people who expedited their cases and some second interviews, but they are moving very slowly (or maybe not at all). Eventually, we will see some movement there, I think. Take care, Jason

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Nana March 9, 2017 at 8:07 am

Do you think if I go in person to ask about my case .it will be effective. My friend went in person but she filed in June 2014 without making any paper to expidate they gave her appointment after her visit with one week only.so I want to go in person …what do you think.

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Jason Dzubow March 10, 2017 at 7:04 am

If you email, they may not respond, and if you call, they may not answer, but if you go in person, they have to at least talk to you (even if it is to tell you they cannot help you). I do think you can sometimes get more info by going in person, so maybe it is worth a try. Take care, Jason

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Danish March 6, 2017 at 6:39 pm

I filled my i730 for my family in December, how long it takes for the approval letter and will new EO will affect on my family petitions while they are in Pakistan?
Please explain me

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Jason Dzubow March 8, 2017 at 6:04 pm

The new EO should not affect your I-730 cases. Processing time varies. We have seen I-730 petitions get approved in anywhere from 1 month to many months. Then the case goes to the Embassy, where it probably takes another few months. Take care, Jason

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Danish March 8, 2017 at 11:24 pm

Thanks a lot jason, but it will not affect on the petition or traveling to USA from Pakistan because of this EO

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Jason Dzubow March 8, 2017 at 11:48 pm

Pakistan is not affected by the EOs. Take care, Jason

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zekhong March 4, 2017 at 5:59 pm

I am from Myanmar/ Burma and I got interview date on coming March 20 2017 . Is still there a chance to approve to get asylum after President Trump’s order.?

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Jason Dzubow March 5, 2017 at 12:34 pm

Yes – We have had a few clients approved since Trump has been president, including people from Muslim countries. Good luck with the interview, Jason

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Fatema March 4, 2017 at 2:59 am

Take Care

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Fatema March 4, 2017 at 2:58 am

Hi Jason. You are really a good human being . Be blessed.

I came US as F1 student in 2012 & my husband as F2 . Now We are (Bangladeshi ) asylee in US (NY) & Waiting for individual hearing which is after 1.5 years later. We have 2 US born children.
Now We are planing to apply for study permit from Canada & already been accepted from a Canadian College.
Please advise me , would it be good idea to leave US & Move to Canada?
Will i get study permit from CIC?
I am soo upset with our situation regarding religion. USA used to be country of freedom .
Please suggest me . I am confused.
Thank you soo much for your kindness for everyone.

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Jason Dzubow March 5, 2017 at 12:12 pm

I cannot comment on Canada, as I do not know about the law there. If you plan to seek asylum in Canada, you should talk to a lawyer there before you leave the US to make sure you are eligible. Some people are not eligible, and get returned to the US and detained here, so check before you travel. I do agree that the US has become a less desirable place lately, due to the hateful rhetoric of our president and the hateful actions of some Americans. Of course, I hope that we will overcome this, but if I were choosing a place to seek asylum, I am not sure that I would choose the US at this time. Take care, Jason

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Fatema March 5, 2017 at 12:45 pm

Dear Jason, Thanks a lot for your reply. So, if i get study permit then would it be wise docision ? I already talk to Canadian Lawyer who will help me to get Study permit. Take Care…..

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Jason Dzubow March 6, 2017 at 7:33 am

If you prefer to be in Canada, and you can legally get there, I think it is a perfectly reasonable decision to go there. It just depends what you want, and what the law allows you to do. Take care, Jason

Reply

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