Trump Executive Orders on the ESTA and U.S. Visas

Updated: May 22, 2017  | Tags: USA Visa, ESTA

Introduction

A recent meeting of the American Immigration Lawyers Association AILA has shed light on the spate of Executive Orders issues by President Trump. The most notorious was perhaps Executive Order 13780 which placed heavy restrictions on nationals from seven African and Middle Eastern nations from entering the United States. On April 6th, minutes from the meeting were released, revealing that the so-called 'blanket ban' on people from Iraq, Sudan, Libya, Syria, Somalia, Iran and Yemen from entering the US features several areas of complexity.

Can the ban be waived? 

At the meeting at the start of April, the AILA aimed to clarify certain aspects of this Executive Order. Ostensibly, it is possible for an individual border official to waive the ban if they have a reasonable belief that being refused entry to the US would cause the applicant substantial hardship. This constitutes section 3c of the Executive order. The AILA asked about this, and it is still possible for a waiver on the ban to be implemented at the discretion of a consular officer. The applicant will need to provide information to support their claim that they will suffer 'undue hardship' if they are refused entry to the US. In sum, the ban can still be waived on a case by case basis.

The end of the ESTA scheme for dual nationals from the seven countries listed above 

The ESTA visa waiver scheme enabled nationals of dozens of nations across the globe (including Chile, Poland and the UK) to travel to the US visa free. All that they needed to do was to obtain electronic ('ESTA') approval before they travelled. This was known as the visa waiver scheme. However, the recent Executive Order has limited this visa waiver scheme for anyone who would previously qualify for the scheme but who is a dual national of Iraq, Sudan, Libya, Syria, Somalia, Iran and Yemen. That means that, for instance, a UK passport holder who is also a Somali national would not be able to enter the US under the visa waiver scheme despite the fact that they would have qualified for this scheme prior to the Executive Order being put in place.

Additional screening for Iraqi nationals 

At the meeting in early April it was confirmed that there would be additional screening checks for Iraqi nationals wishing to enter the US. This results from section 4 of the Executive Order that asks for a 'thorough review' of Iraqi nationals' visa applications. Nevertheless, despite questioning from the AILA, the State Department refused to provide details on the precise nature of these enhanced checks.

The need for in-person interview for certain visa applicants 

Another recent development that has resulted from this Executive Order is the fact that more visa applicants will now need to attend in-person interviews. Most saliently, these include first time applicants from Brazil and Argentina who are aged between 14 and 15, or between 66 and 79. They also include anyone whose previous visa expired more than one year prior to their current application. These in-person interviews are likely to extend the time taken to obtain a visa for nationals of countries throughout the world, not just of Brazil and Argentina.

Will enhanced vetting be implemented for all travellers wishing to enter the US? 

This issue was also raised at the meeting, and it relates not to the Executive Order as such, but rather to a memorandum that the president issued subsequently to the Executive Order. This memo called for enhanced vetting to be implemented across the board, for all travellers entering the States. The State Department confirmed at the meeting that they were working to meet this target, but once again they declined to provide specific information regarding how and when such enhanced vetting would be put in place.

The situation in India will continue as it is 

Finally, the AILA asked a question that related not to the Executive Order but to India. USA visa waiting times in India are typically very long, particularly during the summer. There have been calls in both India and the US to establish a new visa processing post in India to ease the flow of visa applications in this country. This is known as the 'Mission India' project. When asked about whether or not they would be working to establish a new USA visa processing post in India, the state Department replied that they had no immediate plans to do so.

Conclusion: a meeting that raised more questions than were answered

This meeting has been one of the most significant items of USA visa news to date, and this is because it relates to one of the most far reaching items of USA immigration news in recent years: the president's Executive Order. As it often typical of them, the State Department did not provide precise details about their vetting processes for visa applicants to the US. What they did confirm at this recent meeting, however, is that USA immigration officials are working towards fulfilling Executive Order 13780. It is likely that there will be further meetings between the AILA and USA immigration officials in the future. The AILA is a voluntary organisation consisting of practising legal professionals and law professors across the US. We will keep updating you on ESTA news, USA visa news and general USA immigration news as it breaks.