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Travel Ban Frequently Asked Questions

The answers to these Frequently Asked Questions (FAQ) were prepared by the Harvard Immigration and Refugee Clinical Program at the Harvard Law School. The responses below are informational and do not constitute legal advice. Every case is different, and advice will vary depending on the individual circumstances of each student or staff member. This guidance is valid as of February 14 at 12p.m. Please note that the situation with respect to travel is fluid, and we will update these FAQs as frequently as possible.

If you are a non-U.S. citizen Harvard student with questions related to travel, please contact the Harvard International Office as soon as possible. We strongly recommend that you *do not* leave the country without first consulting an immigration expert at the Harvard International Office, the Harvard Immigration and Refugee Clinic, or elsewhere.  In addition, all Harvard students, faculty, and staff should register their travel with the Harvard Travel Registry, available through Global Support Services.

If you are a current undocumented or DACAmented Harvard student, whether at the College or in a graduate program, please contact the Harvard Immigration and Refugee Clinic (hirc@law.harvard.edu) as soon as possible to set up an individual consultation.

What does the Executive Order say about travel to the United States for noncitizens and visas for immigrants and refugees?

On Friday, January 27, President Trump signed an Executive Order entitled Protecting the Nation from Foreign Terrorist Entry into the United States, that contains among other things, the following provisions:

1.      Suspension of entry of immigrants or non-immigrant visa holders from Iraq, Syria, Iran, Libya, Sudan, Somalia, and Yemen, with the possibility of other countries being added to the list (the “Travel Ban”).

2.      Reduction of the maximum number of refugees admitted into the United States to 50,000 people for fiscal year 2017 (Oct. 1, 2016 to September 30, 2017).

3.      Suspension of the U.S. Refugee Admissions Program for 120 days, with an indefinite ban on all refugees from Syria, which only the President may lift.  

a.       When refugee admissions resume, the order allows for prioritization of 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.”

A State Department letter from the same date revealed that nonimmigrant and immigrant visas of nationals from Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen had been provisionally revoked. The State Department subsequently clarified that the revocation would not affect the legal status of those already in the United States.

 

What is the current status of the Travel Ban?

The Department of Homeland Security has stopped enforcing the Travel Ban due to action taken by a federal court on Friday, February 3 in the state of Washington. The court issued a temporary restraining order enjoining enforcement of certain provisions of the Executive Order: namely, the provisions limiting the entry of immigrants and nonimmigrants, suspending the refugee program, and prioritizing refugees of minority religions. The temporary restraining order did not affect the 50,000-person cap on refugees. 

On Saturday, February 4, the Department of Homeland Security announced that to comply with the restraining order, it would no longer enforce the Travel Ban. Standard inspection of travelers resumed, at least in principle. The State Department issued a statement rescinding the revocation of visas that occurred after the Executive Order was signed, and reversed the electronic cancellation of visas.

The federal government then filed an emergency appeal of the decision to the Ninth Circuit. Oral arguments were heard on February 8. On February 9, the Ninth Circuit denied the government’s motion for a stay of the restraining order, pending appeal.  As a result, the Travel Ban is currently enjoined pending the outcome of the litigation.

 

I’ve heard about several different lawsuits being filed challenging the Executive Order. What are they all about?

In the immediate aftermath of the Executive Order, federal judges in several other cities issued related rulings against the detention of individuals who were already in U.S. airports or in transit at the time the Executive Order was signed. Here are a few examples:

1.      Alexandria, VA: On January 28, Judge Leonie Brinkema signed a temporary restraining order requiring that all lawful permanent residents (i.e., green card holders) detained at Washington Dulles Airport be granted access to an attorney. The order also forbade the government from removing those lawful permanent residents for a period of seven days.

a.       The Department of Homeland Security did not comply with the order, and two green card holders with Yemeni citizenship were put on a plane to Ethiopia. They were also pressured into signing forms revoking their green cards.

2.      Boston, MA: Judge Allison Burroughs issued a temporary restraining order on January 29, limiting the secondary screening of two green card holders and prohibiting for seven days the removal or detention of anyone with an approved refugee application, holders of valid immigrant or nonimmigrant visas, lawful permanent residents, and other individuals from the seven listed countries who would be authorized to enter the United States.  This case was subsequently assigned to Judge Nathaniel Gorton, who terminated the temporary restraining order.

3.      Brooklyn, NY: Judge Ann Donnelly issued a temporary restraining order on January 28th preventing the removal of individuals with approved refugee applications, valid immigrant and nonimmigrant visas, and any other individuals from the seven listed countries who have legal authorization enter the United States.

4.      Los Angeles, LA: U.S. District Judge Dolly Gee in Los Angeles directed Homeland Security officials to return Iranian native Ali Khoshbakhti Vayeghan to the United States after he was deported from Los Angeles International Airport on January 28, despite having a valid U.S. visa. Vayeghan reentered the United States on February 2, 2017.

 

Are there any legal challenges to the Executive Order currently pending?

1.      Several states have challenged the order:

a.       Washington State filed a lawsuit in federal district court challenging the constitutionality of the ban and seeking a temporary restraining order halting its implementation. Massachusetts, Minnesota, New York, and Virginia have since joined the suit.

b.      Massachusetts joined the above-mentioned lawsuit in Boston on behalf of two UMass-Amherst professors impacted by the order.

c.       New York also joined the ACLU lawsuit challenging the Travel Ban in Brooklyn.

2.      The ACLU has filed a lawsuit in federal district court in California challenging the ban on behalf of student visa holders.

3.      The Council on American-Islamic Relations (CAIR) filed a lawsuit in the Eastern District of Virginia on behalf of twenty named and unnamed plaintiffs. The suit challenges the Executive Order on the ground that it is unconstitutional because “its apparent purpose and underlying motive is to ban people of the Islamic faith in Muslim-majority countries from entering the United States.”

4.      The American Immigration Council, the Northwest Immigrant Rights Project and the National Immigration Project of the National Lawyers Guild filed a nationwide class action in the District Court for the Western District of Washington on behalf of U.S. citizens and lawful permanent residents who have filed visa petitions for immediate family members who are nationals of the seven countries affected by the Executive Order. Plaintiffs include U.S. green card holders seeking to bring their children to the United States from Syria and Somalia.

5.      ACLU-Washington has filed a class action, also in the District Court for the Western District of Washington, on behalf of nationals of the seven countries who have nonimmigrant student and work visas and are Washington residents.

6.      Two lawsuits have been filed in Chicago on behalf of individual plaintiffs. Similar lawsuits on behalf of individuals have been filed in Dallas, Denver, and Philadelphia.

 

Which countries are targeted by the ban and why?

The seven countries are Iran, Iraq, Syria, Libya, Sudan, and Yemen. The White House has justified its selection of these countries based on a bill introduced and passed by Congress last year called H.R. 158, Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015. The Visa Waiver Program allows visa-free travel among 38 participating countries. H.R. 158 amended the Visa Waiver Program and made it mandatory for nationals of these seven countries, and anyone who had visited those countries since 2011, to first obtain a visa to travel to the United States, with limited exceptions for certain types of professionals like journalists. Notably though, nationals and visitors of those countries were not banned from entering the United States under H.R. 158.

 

Who is impacted and how?

The provisions of the Executive Order affect aliens who are nationals of the seven listed countries and may also affect dual nationals and individuals who have traveled to the seven listed countries. In immigration law, an alien is anyone who is not a U.S. citizen. As a result, the terms of the Executive Order were initially interpreted to include Lawful Permanent Residents (green card holders) who are nationals of the seven listed countries. This interpretation was, however, subsequently revised.

On Sunday, January 29, Secretary of the Department of Homeland Security John Kelly stated: “In applying the provisions of the president’s executive order, I hereby deem the entry of lawful permanent residents to be 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” (emphasis added). The meaning of “significant derogatory information indicating a serious threat to public safety and welfare” has not been clarified.

In addition, the terms of the Executive Order may also affect dual nationals. A national is someone entitled to possess a particular country’s passport. A “national” thus includes someone born in that country or, in some cases, someone whose parents were born in that country. For example, parentage rules in Iran entitle those born outside Iran to hold an Iranian passport if their father is Iranian.

According to information posted on the U.S. Customs and Border Protection (CBP) website, CBP will evaluate travelers attempting to enter the United States based on the passport they present at the border. Theoretically, this means that dual nationals who have passports from a listed and a non-listed country, Canadian-Iranians, for example, would be allowed to enter the United States if they present their Canadian passport at the border. The effects of the Executive Order are not, however, clear for dual nationals. As such, it is important that dual nationals speak with an experienced immigration attorney prior to traveling outside the United States.

 

Are there exceptions to the ban?

Sec. 3(g) states that, “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.  

In addition, Sec. 5(e) notes that, “Secretaries of State and Homeland Security may jointly determine to admit individuals to the United States as refugees on a case-by-case basis, in their discretion, but only so long as they determine that the admission of such individuals as refugees is in the national interest — including when the person is a religious minority in his country of nationality facing religious persecution, when admitting the person would enable the United States to conform its conduct to a preexisting international agreement, or when the person is already in transit and denying admission would cause undue hardship — and it would not pose a risk to the security or welfare of the United States.”

The Customs and Border Protection website provides the following guidance: “DHS and State can review individual cases and grant waivers on a case-by-case basis if that individual’s admission to the United States is deemed to be in the national interest and if they do not pose a national security threat.” The website also notes: “Senior DHS personnel can review individual cases and grant exemptions on a case-by-case basis if that individual’s admission to the United States falls within the parameters of the Executive Order. CBP is processing exemptions consistent with the Secretary’s guidance.”

There is little other information regarding waivers or exemptions at this time.

 

My country is not on the list. Can I travel freely?

The facts on the ground are changing quickly, other provisions of the Executive Order provide a process by which more countries could be added to the Travel Ban, and for that matter, the Travel Ban for the first seven countries was instituted without any process at all.  However, Secretary John Kelly testified before the House Homeland Security Committee and stated in response to rumors that more countries were being considered that “we are right now contemplating no other countries.”

If you have any questions about your particular case and if you are not a U.S. citizen or green card holder and are considering traveling, we highly recommend that you speak with the Harvard International Office or the Harvard Immigration and Refugee Clinic first, prior to leaving the country.

 

My country is on the list, but I have to leave the United States. What should I do?

We strongly advise that you consult with the Harvard International Office, the Immigration and Refugee Clinic or a reputable immigration attorney prior to leaving the country. Because this is a time of uncertainty and fast-moving legal and policy decisions, it is highly recommended that nationals from the seven listed countries and individuals who have visited the seven listed countries not leave the United States. If you must leave, you should consider the possibility that you may not be able to re-enter the country.

 

I am overseas with a flight scheduled to the United States. What should I do?

Before you travel, we advise that you consult with an attorney and bring a completed Form G-28 with you as you travel. A G-28, or Notice of Entry of Appearance of Attorney, is a form that is used to demonstrate that your immigration matters are being handled by a particular attorney. If this is not possible, it is recommended that you have a U.S. immigration attorney’s contact information with you and that you be in touch with the attorney as soon as possible prior to departure, so he or she can advise you through every step of the journey and can be aware of how your case is being handled. It is also recommended that you prepare for the possibility that you may be prevented from boarding your flight, depending on the status of the ongoing litigation and whether the travel ban is being enforced or not.

For an online directory of U.S. immigration organizations, see www.immigrationlawhelp.org. An online directory of private attorneys is available through the American Immigration Lawyers Association at www.ailalawyer.com.  There are additional steps you can take to prepare for your flight into Boston Logan Airport listed here. People flying into JFK should contact jfkneedalawyer@gmail.com for more information.

 

What if I am asked to relinquish my green card or visa?

There are reports of individuals signing an I-407 (Record of Abandonment of Lawful Permanent Residence Status). Do not sign anything if you are unsure of what the document is. If asked to sign anything, it is important that you ask to speak with an immigration attorney before doing so. We strongly encourage you to consult with the Harvard International Office or the Harvard Immigration and Refugee Clinic, or an experienced immigration lawyer, prior to traveling, and to keep the phone number for an immigration attorney on hand.

 

Can CBP ask me about my social media presence and my political preferences? What should I do if CBP asks to check my phone or laptop? 

The ACLU has prepared a “Know Your Rights” document for travelers, which addresses this question. There are reports that CBP is asking to look at traveler’s social media accounts and their personal technology devices, and according to the CBP website, CBP officers may search laptops, cell phones, or other electronic devices. It is important to note, however, that CBP may not select you for a personal search or secondary inspection based on your religion, race, national origin, gender, ethnicity, or political beliefs.

U.S. citizens may be subjected to delay, questioning and device seizure for refusal to provide passwords or unlock devices, but cannot be denied entry to the United States. Noncitizens may, however, be denied entry. If your electronic device is searched or seized, write down the officer’s name and ask for a receipt for the property.

It is an open legal question whether you have a right to decline to provide passwords or unlock phones. Whether CBP has the authority to search electronic devices or files without reasonable suspicion that the devices contain evidence of wrongdoing — and for that matter, what constitutes “reasonable suspicion” for a CBP official — are also unresolved issues.

You should contact an attorney if you believe that your rights have been violated.

 

I believe I am being targeted because I’m Muslim. What rights do I have?

The ACLU has prepared a “Know Your Rights” document to help navigate this issue, which can be found here. Generally, all individuals have the right to be free from discriminatory questioning at the airport or border. CBP does, however, have the right to ask about your immigration status when entering or leaving the country. Noncitizens who refuse to answer officers’ questions may be denied entry into the United States. But CBP may not choose to question you because of your religion, race, national origin, gender, ethnicity, or political beliefs.

U.S. citizens who are subject to intrusive questioning have the right to talk to a lawyer before answering but may be subject to delays or further inspection for refusal to cooperate. Green card holders may have the right to speak with a lawyer, depending on the situation. Non-citizen visa holders may also ask to speak with a lawyer but do not generally have the right to consult with an attorney before answering questions.

However, any individual — U.S. citizen or noncitizen — who is informed that he or she is under arrest or is suspected of having committed a crime has the right to speak to an attorney prior to answering any questions.

 

I am overseas and the airline won’t let me board the plane to enter the United States. What can I do?

If you do not have a valid visa to enter the United States, airlines will generally not allow you to come to the United States, unless the visa was canceled due to the Executive Order (see answer to FAQ above). If you believe that you have a valid visa to enter the United States and airlines are stopping you, you should contact a local immigration attorney to help you. Mass Legal Help also recommends that if you are a national of one of the seven listed countries flying into Boston Logan, you should call 617-903-8943 or email executiveorder@fragomen.com  to speak with a lawyer.

If you had tried to enter the United States when the Executive Order was signed and you were stopped, the International Refugee Assistance Program can help with reentry. Contact them at airport@refugeerights.org, using the subject line “REENTRY.”

There is an app to connect with a lawyer in certain airports, including Boston, through AirportLawyer.org.

Please notify the Harvard International Office if you are a Harvard student or scholar traveling outside the United States and unable to re-enter or enter the United States.

 

Will my application for immigration benefits (i.e., green card or naturalization applications or other petitions) be put on hold because of the Executive Order?

Section 3 of the Executive Order states: “The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall immediately conduct a review to determine the information needed from any country to adjudicate any visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat.”

An internal memo signed February 2 explains that U.S. Citizenship and Immigration Service (USCIS) has interpreted this section to mean the following:

1.      The issuance of visas and other benefits to immigrants from the targeted countries “does not affect USCIS adjudication of applications and petitions filed for or on behalf of individuals in the United States regardless of their country or nationality.” In other words, if you are currently in the United States, your general applications and petitions before USCIS should remain unaffected.

2.      Applications to Register Permanent Residence and Adjust Status (I-485) may continue to be processed according to existing policies, even for nationals of the seven listed countries. However, Consular Processing (DS-260 applications) are affected by the Executive Order and interviews were cancelled in the aftermath of the ban.

3.      USCIS will continue to adjudicate Refugee/Asylee Relative Petitions for all beneficiaries from any country currently in the United States. Further guidance is forthcoming for those outside of the United States.

4.      USCIS will continue to adjudicate affirmative asylum cases.

 

What if my existing immigration status will expire before the end of the review period, and I am from one of the banned countries?

Unfortunately, at this time, instructions regarding this particular scenario have not been provided by USCIS. The government has not made any announcements regarding renewals of status. This is a developing matter and more information will be forthcoming.

 

What is the status of my H1-B/Optional Practical Training under this new Administration?

There are a lot of proposals circulating for how to "fix" immigration, including the H-1B system and Optional Practical Training available to graduated students on F-1 visas. The White House may ask DHS to conduct a study of the visa process to determine which visa regulations may or may not be in the national interest, and to make recommendations how to improve visa systems, including the H-1B system.  Certain bills have been introduced in Congress to amend H-1B procedures also. Passing a law in Congress or amending federal regulations is time consuming, and the University is monitoring these efforts.  We can recommend americanimmigrationcouncil.org for good, updated information about developments.

 

How can I be an ally?

Offer to be a volunteer translator or tutor

Attorneys have asked for Arabic and Farsi translators at airports, and legal service organizations can benefit from the translation of other languages as well, especially Spanish. For those who can translate, refugee support organizations may have opportunities for you to tutor. For more opportunities, look here.  (Note that students and scholars on visas should first check with the HIO before accepting any paid positions.)

Learn about and support resources in your community

Support and connect with local organizations to find the issues that are affecting the community around you. There are many local organizations that are helping immigrants. You can find a list of some of them here.

Adopt a policy maker and speak up

Policy makers move on issues as a result of pressure that they face from their constituents. Make the process manageable by picking one or just a few politicians and setting a weekly time to call them.

●       Senators and House Representatives contact information: https://www.senate.gov/general/contact_information/senators_cfm.cfm?OrderBy=state

●       Senate and House Committees on Homeland Security:

○       House Committee for Homeland Security: https://homeland.house.gov/full-committee/

○       Senate Committee for Homeland Security: https://www.hsgac.senate.gov/about?

●       State Attorneys General suing the Administration of President Trump over the Travel Ban:

○       Washington, http://www.atg.wa.gov/Contact-us

○       Massachusetts, http://www.mass.gov/ago/

○       Minnesota, https://www.ag.state.mn.us/Office/ContactUs.asp

○       Virginia, http://ag.virginia.gov/index.php/contact-us/contact-info

○       New York, https://ag.ny.gov/contact-attorney-general

●       There are several bills under discussion in the Senate to block Trump’s executive order:

○       http://www.theblaze.com/news/2017/01/29/top-senate-democrat-announces-legislation-to-reverse-trumps-immigration-executive-order/

○       http://thehill.com/blogs/floor-action/senate/316931-senate-dems-introduce-bill-to-block-trumps-refugee-order

○       The list of Senators and Representatives and their positions on Trump’s executive order:

■       http://www.npr.org/2017/02/01/512860167/congress-tracker-trumps-refugee-and-immigration-executive-order

 
February 10, 2017

The temporary restraining order, which halted the enforcement of certain provisions of President Trump's executive order banning foreign nationals from seven countries from entering the U.S., remains in effect after a decision by the 9th Circuit Court of Appeals.
Despite this ruling, the HIO continues to advise foreign nationals from the seven restricted countries (Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen) to exercise caution and discuss any travel plans with their HIO Advisor when considering travel outside
...

February 7, 2017

The University will be hosting a second Town Hall-style meeting on Monday, February 13 from 6:30pm-8pm at the Harvard-Yenching Auditorium located at 2 Divinity Avenue.

The University  hosted an information session on Wednesday, February 1st to discuss recent executive orders restricting travel to the United States.  The information session was hosted by the Office of the Vice Provost for International Affairs and included a representative from the Harvard International Office and the Harvard Law School’s Immigration and Refugee Clinic.  The panel presented ...

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