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What to Expect of the Presidential Executive Order Suspending Visa Issuance for “Countries of Particular Concern,” and Temporary Ban on Refugees

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President Donald Trump is expected to hand down a controversial Executive Order on immigration within the coming days to protect the nation from terrorist attacks by foreign nationals. Although the Trump administration has not made a formal announcement regarding the proposed order yet, a leaked, unsigned copy of the President’s order has been making the rounds. We do not know whether the President has made any modifications to the order since its leak, and we do not know when exactly the order will be issued. One thing is clear, an executive order on immigration is imminent. It is rumored that the executive order will include a temporary ban on refugees, the suspension of issuance of visas for citizens of Syria and six other Middle Eastern and African countries, which are rumored to include Iraq, Iran, Libya, Somalia, Sudan and Yemen, collectively referred to as “countries of particular concern,” as well as the end of Syrian refugee processing, and the visa interview waiver program.

The passage of such an executive order although extremely controversial and unpopular, would be within the President’s executive power, if his administration determines that limiting refugee admissions temporarily and restricting the issuance of visas to persons from specific countries is of significant public interest to the United States to combat the war on terror. The administration would need to balance our country’s need to secure its borders against terrorism with the need to resolve the global humanitarian crisis we face today. Donald Trump has already passed a series of executive orders on border security and immigration enforcement authorizing the construction of a U.S.-Mexico border wall, withholding federal grant money for sanctuary cities, hiring 5,000 Border Patrol agents, reinstating local and state immigration enforcement partnerships, and ending the “catch-and-release” policy for undocumented immigrants.

The leaked copy of the executive order “Protecting the Nation from Terrorist Attacks by Foreign Nationals” gives two policy reasons for enacting the executive order. First, the purpose of the order is to protect American citizens from foreign nationals who intend to enter the United States to commit acts of terrorism. Second, the order serves to prevent the admission of foreign nationals who intend to enter the United States to “exploit” the country’s immigration laws for malevolent purposes. The order highlights that following the September 11 attack on the World Trade Center, hundreds of foreign nationals have successfully entered the United States on an asylum, visitor, student, or employment visa, and have been subsequently convicted or implicated in terrorism related crimes. The order goes on to blame the State Department’s consular officials for their failure to scrutinize the visa applications of the foreign nationals who went on to commit the September 11 attacks, which resulted in the deaths of thousands of Americans.

The main provisions of the leaked order “Protecting the Nation from Terrorist Attacks by Foreign Nationals” are as follows:

  1. Suspension of Issuance of Visas and Other Immigration Benefits to Nationals of Countries of Particular Concern
  • The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, must immediately conduct a review to determine the information needed from any country for adjudication of any visa, admission, or other benefit under the INA adequate to confirm the identity of the individual seeking the benefit and ensure that they are not a security or public-safety threat to the United States.
  • The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National intelligence, must prepare a report for the President concerning the results of the Secretary of Homeland Security’s determination of the information needed for adjudications and provide a list of countries that do not provide adequate information, within 30 days of the date of the order (excludes foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, and C-2 visas for travel to the United Nations).
  • The immigrant and nonimmigrant entry into the United States of aliens from countries designated is suspended for 30 days from the date of the order.
  • The Secretary of State shall request all foreign governments that do not supply such information to start providing such information regarding their nationals within 60 days of notification.
  • After the 60-day period described in subsection (d) of this section expires, the Secretary of Homeland Security, in consultation with the Secretary of State, shall submit to the President a list of countries recommended for inclusion on a Presidential proclamation that would prohibit the entry of foreign nationals (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, and C- 2 visas for travel to the United Nations) from countries that do not provide the information requested pursuant to subsection (d) of this order until compliance occurs.
  • 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.
  1. Implementing Uniform Screening Standards for all Immigration Programs
  • The Secretary of State, the Secretary of Homeland Security, the Director of National Intelligence, and the Director of the Federal Bureau of Investigation shall implement a program during the adjudication process for immigration benefits to identify individuals seeking to enter the United States on a fraudulent basis, with the intent to cause harm, or who are at risk of causing harm subsequent to their admission.
  • This program will include the development of uniform screening standards and procedures, such as in-person interviews; the creation of 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’s identity; a process to evaluate the applicant’s likelihood of becoming a positive 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 after entering the United States.
  1. Realignment of U.S. Refugee Admissions Program (USRAP) for Fiscal Year 2017
  • Suspends the U.S. Refugee Admissions Program (USRAP) for 120 days
  • USRAP application and adjudication process will change and may include additional procedures for approval to ensure applicants do not pose a security threat to the United States, upon the recommendation of the Secretary of State and Homeland Security
  • Refugee applicants in USRAP may be admitted to the United States upon initiation and completion of revised application and adjudication procedures
  • After the 120 days have lapsed from the order, the Secretary of State shall resume USRAP admissions only for foreign nationals of countries which the Secretary of Homeland Security, State, and Director of National Intelligence have jointly determined sufficient safeguards are in place to ensure security of Americans
  • Upon resumption of USRAP, Secretary of State is directed to make changes, to prioritize refugee claims by individuals made based on religious-based persecution if the individual is from a minority religion in their country o nationality
  • Refugee processing and admittance of nationals from Syria as refugees is to be submitted from the date of the order until the President has determined sufficient changes have been made to USRAP application and adjudication procedures in alignment with the national interest
  • Only 50,000 refugee applications may be processed and admitted during FY 2017 notwithstanding previous presidential determinations regarding the number of refugee admissions for FY 2017. The Secretary of State and Homeland Security shall prioritize allocation among refugees of special humanitarian concern to the United States
  • Notwithstanding the temporary suspension, the Secretaries of State and Homeland Security may continue to admit individuals to the United States as refugees on a case-by-case basis when it is in the national interest.
  • During the temporary suspension, the Secretaries of State and Homeland Security may continue to admit individuals to the United States as refugees those refugee claims made by individuals on the basis of religious-based persecution, provided the individual’s religion is a minority religion in their country of nationality
  1. Establishment of Safe Zones to Protect Vulnerable Syrian Populations
  • The Secretary of State, in conjunction with the Secretary of Defense, must produce a plan to provide safe areas in Syria and surround regions within 90 days of the date of the order so that Syrian nationals displaced from their homeland can await firm settlement, such as repatriation or potential third-country resettlement.
  1. Rescission of Exercise of Authority Relating to the Terrorism Grounds of Inadmissibility
  • The Secretaries of State and Homeland Security shall, in consultation with the Attorney General, consider rescinding the exercises of authority in section 212 of the INA relating to the terrorism grounds of inadmissibility, as well as any related implementing memoranda
  1. Visa Interview Security
  • The Secretary of State shall immediately suspend the Visa Interview Waiver Program and ensure compliance with section 222 of the INA, which requires that all individuals seeking a nonimmigrant visa, undergo an in-person interview, subject to specific statutory exceptions.
  1. Visa Validity Reciprocity
  • The Secretary of State shall review all nonimmigrant visa reciprocity agreements to ensure that they are, with respect to each visa classification, truly reciprocal insofar as practicable with respect to validity period and fees, as urged by sections 221 (c) and 281 of the INA, and other treatment. If a country does not treat U.S. nationals seeking nonimmigrant visas in a reciprocal manner, the Secretary of State shall adjust the visa validity period, fee schedule, or other treatment to match the treatment of U.S. nationals by the foreign country, to the extent practicable.
  1. Transparency and Data Collection

The Secretary of Homeland Security shall, consistent with applicable law, collect and make publicly available within 180 days, and every 180 days thereafter:

(a) information regarding the number of foreign-born individuals in the United States who have been charged with terrorism-related offenses; convicted of terrorism-related offenses; or removed from the United States based on terrorism-related activity, affiliation, or material support to a terrorism-related organization, or any other national security reasons;

(b) information regarding the number of foreign-born individuals in the United States who have been radicalized after entry into the United States and engaged in terrorism related acts, or who have provided material support to terrorism-related organizations in countries that pose a threat to the United States; and

(c) information regarding the number and types of acts of gender-based violence against women or honor killings by foreign-born individuals in the United States.

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