Last summer, the Trump Administration implemented a travel ban to block or restrict nationals from certain countries from entering the United States. The ban was justified based on “national security” or because the targeted countries had higher-than-average visa overstay rates.

Now, according to a report from the New York Times and my conversations with Asylum Officers, it seems that people from banned countries who are already in the U.S. will face additional restrictions on receiving asylum and obtaining a Green Card.  

Let’s start with the travel ban, which is divided into a few parts. First are countries whose nationals are “fully suspended” from travel to the United States: Afghanistan, Burma, Chad, Republic of the Congo, Equatorial Guinea, Eritrea, Haiti, Iran, Libya, Somalia, Sudan, and Yemen. Other countries are subject to a “partial ban” on travel to the U.S.: Burundi, Cuba, Laos, Sierra Leone, Togo, Turkmenistan, and Venezuela. There are also 36 additional countries that the Administration is considering banning, though so far, no other countries have been added to the list. 

Before we discuss how the ban will affect people in the U.S., I should note that we have no official announcement about this new policy from USCIS. What I know is based on my own conversations with Asylum Officers and the NY Times article. Also, we don’t know what countries will be affected. Will it only be countries subject to the “full” ban? Or will “partial ban” people be affected as well? What about nationals from the 36 “potential ban” countries? We don’t know.

With these caveats in mind, let’s look first at asylum seekers. I spoke with Asylum Officers who told me that people from banned countries cannot currently be granted asylum, though their cases can be denied. Again, we don’t know if this applies to full, partial or potentially banned people. If the Asylum Office plans to grant a “banned” person’s application, they need approval from headquarters. How long that process will take, and what criteria headquarters will apply to make a decision, we do not know.

My information from the Asylum Officers is a bit different from the NY Times article, which reports that citizenship in a banned country will be treated as a “significant negative factor” in determining whether an applicant is eligible for asylum or a Green Card (or certain other relief) as a matter of discretion. To explain: Most immigration benefits have legal requirements and discretionary requirements. So, for example, if you meet the legal requirements for asylum, USCIS or the Immigration Judge must also decide whether you deserve asylum as a matter of discretion. Where a person does not have negative discretionary factors (such as criminal issues), they would normally qualify for a discretionary grant of asylum. Also, the fact that a person meets the definition of an asylee has traditionally been treated as a strong positive discretionary factor. Therefore, in practice, almost everyone who meets the legal requirements for asylum is granted asylum as a matter of discretion. Perhaps the new policy is meant to block or delay certain asylum seekers by making nationality a “significant negative factor” for people from banned countries. 

For the time being (at least until the new policy goes into effect), it seems that the Asylum Offices are “holding” asylum grants from banned countries. Once (and if) the policy is implemented, we will get a sense of its impact.

The new policy would also affect Green Card applications, though it is not clear whether all such applications will be affected. Indeed, the travel ban explicitly states that it “shall not apply to an individual who has been granted asylum by the United States[ or] to a refugee who has already been admitted to the United States.” However, there is an unconfirmed report that USCIS intends to re-interview refugees who entered during President Biden’s term and that Green Card applications filed by such refugees will all be put on hold. How this will play out, we don’t yet know.

According to the Times article, applications for citizenship will not be affected, and this aligns with the language of the travel ban, which does not apply to “any lawful permanent resident of the United States.” Whether citizenship applications will actually be unaffected remains to be seen.

If you are from a travel ban country, what should you do? Since we don’t yet know how this policy will look, I think people should continue to file for asylum, a Green Card or citizenship as before. You may be required to show evidence of good moral character to counteract the “negative factor” of country of origin, and it is worthwhile to at least start thinking about what you will submit if asked. This could include evidence of family ties to the U.S., employment or school attendance, volunteer work, payment of taxes, awards, and letters of support from people who know you, especially people who are prominent in your community.

The nicest thing you can say about USCIS’s new policy is that it is unlikely to achieve its purported goals. If the concern is “security,” then putting cases on hold, but leaving supposedly dangerous individuals free in our country, does nothing to make us safer. The policy is also a form of victim blaming–punishing asylum seekers because we dislike the government from which they fled. In the end, we will have to see how this new policy is put into effect, but like many other Trump Administration initiatives, it seems designed to harm immigrants without doing anything to benefit the United States.

For now, I hope you can set all this aside, and I wish you a happy Thanksgiving!