On Friday, January 27, 2017, President Trump signed an executive order, “Protecting the Nation from Foreign Terrorist Entry into the United States” The Executive Order has far reaching and significant impact not only on the admission of refugees into the United States but also on the immigration system at large and even international travel from the United States.

Among other things, the order:

  • Suspends the U.S. Refugee Admissions Program (USRAP) program for 120 days and suspends the Syrian refugee program indefinitely.
  • the order reduces the number of refugees to be admitted to the U.S. by more than half from an initial goal set by President Obama of 110,000 to 50,000, dropping U.S refugee admissions to the lowest level in a decade. Having already admitted 29,895 refugees as of January 20, 2017, the United States would only admit 20,000 more refugees for the remainder of the year.
  • The order imposes a 90-day ban on entry for immigrant and nonimmigrant nationals of Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen while the government undertakes a review.
  • The order suspends the Visa Interview Waiver Program (VIWP), requiring all nonimmigrant visa applicants to attend an interview
  • Implementing Uniform Screening Standards for All Immigration Programs and Establishes the requirements for “extreme vetting”


Section 7 “Expedited Completion of the Biometric Entry-Exit Tracking System” and Section 8 “Visa Interview Security” will have far reaching consequences on the immigration system in the United States and merit further analysis and discussion.

Section 7 of the order directs the Secretary of Homeland security to expedite the Completion and implementation of the Biometric Entry-Exit Tracking System for all travelers to the United States.

Since 1996, Congress has mandated that an automated entry-exit system be developed and implemented at all air, land, and sea ports of entry in an attempt to track those who overstay their visas. Biometrics have been collected from most individuals upon entry since 2009 (US-VISIT, ESTA). In order to implement the Exit Tracking System, DHS has identified three primary obstacles that have delayed implementation of the collection of exit data: (1) collection of such data would disrupt the flow of travelers through air terminals, (2) air carriers and airport authorities have so far blocked testing of a method that incorporates the collection of biometric data into passenger processing at the departure gate, and (3) questions about which personnel would be responsible for collecting departure data. Even with a system in place, it is more likely that the benefits of knowing who has left the country are not as significant as knowing who is entering the country.

Many international travelers are already familiar with similar exit data collection systems utilized by many countries. Basically, upon leaving the country a traveler would need to undergo a border passport check procedure similar to the process of entering the country. In the US, travelers exit information is recorded by the international carrier and submitted to a DHS database to be matched with arrival records. The accuracy of the information transmitted to DHS is entirely dependent on the carriers.

 

To implement an exit tracking system for all travelers DHS faces numerous obstacles and logistical issues. Besides requiring significant funding and personnel resources to administer the program, DHS also faces infrastructure issues. Since the program requires DHS to inspect travelers upon exit, new facilities would need to be constructed or added to all international ports of entry. This would be a monumental task. A new inspection requirement for exiting travelers would undoubtedly significantly inconvenience all international travelers though already overtasked ports. The system could cause delays, confusion, and disruption in international ports.

The value of tasking DHS with tracking exiting travelers is also uncertain. While biometric data collection upon exit might give better information about who has overstayed a period of authorized admission, it would not tell law enforcement where the individual is located within the country. However, the implementation of the exit tracking system may open the door for future uses by the government. Since the system would record the travel of US citizens as well as tourists, the system may be used for a verity of legal and law enforcement purposes. For example, the system would allow DHS to block wanted or suspected criminals from leaving the country, prevent citizens from escaping family, legal or financial obligations and more. Many countries use such exit tracking systems to restrict travel of their own citizens in a variety of situations. Furthermore, implementing such a system in the US will open the door to many new and complex constitutional legal challenges.

Section 8 of the Executive Order tasks the Secretary of State to “immediately suspend the Visa Interview Waiver Program and ensure compliance with section 222 of the INA, 8 U.S.C. 1222, which requires that all individuals seeking a nonimmigrant visa undergo an in-person interview.” The repercussions of this section on nonimmigrant visa process could be immense. The order suspends the Visa Interview Waiver Program (VIWP), requiring all nonimmigrant visa applicants to attend an interview unless an interview is not required by statute. The VIWP allowed consular officers to waive the interview requirement for applicants seeking to renew nonimmigrant visas within 12 months of expiration of the initial visa in the same classification. Suspending the VIWP will place enormous burdens on U.S. consulates and embassies (particularly high-volume posts) by increasing already extended interview wait times and processing times, taxing limited resources, and possibly decreasing the quality of consular interviews. The VIWP has been used to waive the interview requirement only for travelers who have already been vetted and determined to be a low security risk and who have a demonstrated track record of stable employment and stable travel. The program benefits the US by allowing government employees to focus their resources on cases that need interviews. Only low risk travelers who have already been vetted by the government qualify: for example, the very elderly, very young, or individuals who have demonstrated a track record of stable employment, stable travel, and/or a previous determination of low security risk.

Getting rid of the program will require that embassies with already scarce resources interview every applicant, instead of focusing their resources on higher risk categories or new cases where eligibility or security may be more of a concern. This will decrease efficiency and lower the quality of interviews, particularly for high volume posts like India. This requirement will require hiring more consular officers or taking a large portion of those offices away from their other duties. Either way, consular function and services will be impeded, without the promise of increased security in return.

US employers and the US economy will be harmed.

Imposing additional visa application burdens could impede tourism and business travel to the US, hurting both the tourism industry and the US economy. The VIWP is largely utilized for employment-based nonimmigrant applicants, such as H, O, P, and L visas, who are simply seeking a renewal visa. Requiring everyone to go through an interview will impede the ability of employment based visa applicants to obtain a visa and return to the U.S. quickly, which will disrupt U.S. businesses and the flow of commerce. Lengthy waits for interviews will make it very difficult for U.S. businesses to be flexible, respond quickly, or even plan ahead – hindering their ability to create jobs and help build the economy.

In addition, imposing additional visa application burdens on foreign nationals invites reciprocal requirements being imposed by foreign governments, thereby restricting the ability of American citizens to travel abroad for business or tourism.

This requirement places an undue burden on legal tourism, nonimmigrant and work-related travelers. Limited consular resources should be primarily devoted to high risk or new visa applicant cases where eligibility or security is a concern.

Feel free to contact Cortbett & Kohina for all your immigration needs or concerns.