United States – Judge Stays Travel Ban, Trump Administration Acts to Defend in Court

United States – Judge Stays Travel Ban, Trump Admin

This GMS Flash Alert reports on the effects of the Temporary Restraining Order (TRO) issued by a U.S. federal judge on February 3, 2017, regarding President Trump’s January 27, 2017 Executive Order concerning travel to the U.S. for nationals of seven countries.

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Pursuant to the Temporary Restraining Order (TRO) issued by a U.S. federal judge1, all nationals from the seven affected countries listed in President Trump’s January 27, 2017 Executive Order may now (since Friday, February 3, 2017) board aircraft bound to the U.S. and apply for entry based on their valid nonimmigrant and immigrant visas.

What You Need to Know Now

  1. Individuals holding temporary status who are currently in the United States are advised to remain in the United States until resolution of the application to terminate the TRO in order to avoid the inability to travel to the United States if the TRO is no longer in effect while the individual is outside of the United States.
  2. Individuals holding temporary status currently outside the United States should seek advice from their qualified immigration counsel to determine the appropriate opportunity to return to the United States – there is currently no impediment to returning to the United States, and this course of action should be carefully considered.  Note that a valid U.S. visa is required and if the current visa has been cancelled, there may be a need for its physical re-issuance.  U.S. visas that have been provisionally cancelled may be electronically reinstated.
  3. At this time, it would appear that there is no impediment to a U.S. lawful permanent resident returning to the United States, as it is the case with a dual national holding a passport from a non-restricted country with a valid U.S. visa, in the event that the Executive Order is reinstated.  The appropriate legal advice should be obtained prior to returning to the United States to ensure that there has been no change in this position. 

For prior coverage, see GMS Flash Alert 2017-018, 31 January 2017. 

WHY THIS MATTERS

  1. Airlines have been advised by the Department of Homeland Security that the holders of valid visas by individuals of the one of the seven countries should be allowed to board aircraft.
  2. Similar instructions have now been issued to Consular offices and ports-of-entry with the ability to enter the United States.
  3. It is critical that employers and employees monitor the status of this situation as any change in the legal position could have dramatic consequences on a temporary visa holder’s ability to re-enter the United States.
  4. In limited circumstances where a visa has been physically cancelled, it is necessary to seek appropriate legal assistance with having a visa reissued at the earliest possible opportunity. 

Background

President Trump’s Executive Order signed Friday January 27, 2017, prohibited all foreign nationals presenting a passport from one of the seven affected countries (Sudan, Syria, Libya, Somalia, Iran, Iraq, and Yemen) from entering the United States.  As per the Directive dated January 27, 2017, the Department of State provisionally revoked all valid nonimmigrant and immigrant visas of nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen subject to two exemptions.

Subsequent to the issuance of the Executive Order, further guidance was released that the Order would not impact those foreign nationals from affected countries that were lawful permanent residents of the United States. This meant that as January 27, 2017, foreign nationals from the seven affected countries holding nonimmigrant visas that were outside the U.S. would not be permitted entry to the U.S. despite holding valid visas.

Court Issues Temporary Restraining Order

A federal judge in Seattle, Washington issued a TRO Friday, February 3, that applies nation-wide effectively stopping President Trump's Executive Order.  

KPMG NOTE

Next Steps

There has been considerable confusion regarding the legal effect of the “ban” and the TRO.  

It is understood the Department of Justice intends to file an emergency stay of this TRO and defend the president’s Executive Order, which is currently under active consideration by the 9th Circuit Court of Appeals, and a decision as to whether the TRO will be reviewed is expected shortly.

As the situation is fluid, consultation by affected parties with their U.S. immigration attorney prior to any travel to or departure from the United States, is strongly recommended.

KPMG LLP Law will endeavor to keep readers informed as developments occur. 

FOOTNOTE

1  See the federal judge’s ruling

CONTACTS

For assistance with immigration-related matters pertaining to the United States, please contact your local qualified immigration counsel*, or the following immigration professional with the KPMG International member firm in Canada:

 

Charlene Quincey

U.S. Immigration practice leader, KPMG Law, Canada

Tel.: +1-416-943-0288 x266 

cquincey@kpmglaw.ca  

 

*  KPMG LLP (U.S.) does not provide any immigration services.  Please note, however, that KPMG LLP Law in Canada can assist clients with U.S. immigration matters.  

The information contained in this newsletter was submitted by the KPMG International member firm in Canada.

© 2017 KPMG LLP, a Canada limited liability partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International Cooperative (“KPMG International”), a Swiss entity. All rights reserved.

Flash Alert is an Global Mobility Services publication of KPMG LLPs Washington National Tax practice. The KPMG logo and name are trademarks of KPMG International. KPMG International is a Swiss cooperative that serves as a coordinating entity for a network of independent member firms. KPMG International provides no audit or other client services. Such services are provided solely by member firms in their respective geographic areas. KPMG International and its member firms are legally distinct and separate entities. They are not and nothing contained herein shall be construed to place these entities in the relationship of parents, subsidiaries, agents, partners, or joint venturers. No member firm has any authority (actual, apparent, implied or otherwise) to obligate or bind KPMG International or any member firm in any manner whatsoever. The information contained in herein is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavor to provide accurate and timely information, there can be no guarantee that such information is accurate as of the date it is received or that it will continue to be accurate in the future. No one should act on such information without appropriate professional advice after a thorough examination of the particular situation.

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