2017July 14, 2017 – Donald Trump’s March 6, 2017 executive order banning travel from six majority-Muslim countries is partially in effect following a June 26, 2017 Supreme Court ruling.
The order bans travel from Libya, Iran, Somalia, Sudan, Syria and Yemen for a period of 90 days, provided the traveller has no connection with the United States.
We review the implications of this order following a number of important developments at the executive and judicial levels.
On June 26, 2017, the U.S. Supreme Court passed a ruling than allowed the executive order to partially come into force.
The ruling means travellers from Libya, Iran, Somalia, Sudan, Syria and Yemen – who do not have a connection with the U.S. – are banned from travel for 90 days. The U.S. refugee program is also suspended for 120 days, again for candidates with no U.S. connection.
The executive order is in force as of 8pm EDT on June 29, 2017.
The executive order, signed on March 6, bans travellers from Libya, Iran, Somalia, Sudan, Syria and Yemen for 90 days. It also suspends the entire U.S. refugee for 120 days. It was due to go into effect on March 16, but was blocked by federal judges in both Hawaii and Maryland.
This was Trump’s second attempt an executive order after the original one was also suspended by the U.S. courts. The main difference between the two orders was the original inclusion of Iraq as one of the targeted countries.
Initial State Department guidance said citizens of the six banned countries and refugees must prove a relationship with a parent, spouse, child, adult son or daughter, son-in-law, daughter-in-law or sibling who is already in the U.S., if they are to be granted entry.
Grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-law and sisters-in-law, fiancée’s or other extended family members initially did not count as close family members.
However, a July 14 ruling by District Judge Derrick Watson said grandparents and others should be considered close family members.
The document includes further guidance on what is deemed a close business tie, saying the relationship must be “formal, documented and formed in the ordinary course rather than for the purpose of evading” Trump’s executive order. Officials are to be alert to a relationship that may have been struck specifically to circumnavigate the new rules.
The Judge Watson ruling also said an agreement with a refugee group was enough to circumnavigate the ban.
The order caused chaos because of a lack of clarity on exactly who it covered and who it did not. Here is a list of the exemptions, many the subject of several announcements since January 27th.
- American citizens
Immigrants from the seven countries who have American citizenship are not covered by the ban.
- Green card holders
Despite initial confusion that saw U.S. green card holders barred from boarding flights, officials have now clarified that they are not covered by the ban. However, even those with permanent residency should expect greater scrutiny from border officials.
- Dual nationals
Those with dual nationality in one of the six countries are exempt provided they are travelling on a passport from an accepted country.
Anyone travelling with diplomatic credentials was exempt from the very start. Ye, the former Norwegian Prime Minister Kjell Magne Bondevik was stopped by US border control agents at Washington Dulles Airport and questioned for roughly an hour before being granted permission to enter the country. He had flown to Washington DC to attend the Trump sponsored National Prayer Breakfast but was held up due to an Iranian visa in his diplomatic passport.
- Special immigrant visa holders
The U.S. has also made an exemption for Iraqi nationals with a special immigrant visa, who have worked with American authorities as translators or interpreters.
- Anyone with an exemption
The U.S. authorities have the power to grant exemptions on a case-by-case basis.
The new ban says Canadian permanent residents from any of the six Muslim-majority countries will need to apply for a waiver to enter the U.S.
The wording of the ban directly deals with the case of Canadian landed immigrants, saying waivers will be granted on a case-by-case basis by a U.S. consulate or U.S. customs official.
It represents a stark difference from the original Trump immigration ban, after which White House officials assured Canada Immigration Minister Ahmed Hussen there would be no change in the process of visiting the U.S. for Canadian permanent residents.
Permanent Resident Admissions To Canada From 6 Banned Countries
Source: Immigration, Refugees and Citizenship Canada
*Data for January to September only
New Canadian Citizens From 6 Banned Countries
Source: Immigration, Refugees and Citizenship Canada
*Data for January to September only
With authority in the hands of the U.S. Supreme Court, the case has now reach the highest judicial power in America.
The decision to partially reinstate the executive order came despite two injunctions from lower courts suspending the ban.
The U.S. Supreme Court does not reconvene until October, so the partial imposition of the ban is likely to remain until then. How long the hearing will take once the court reconvenes is not known, also the case could be given priority.
The new order, signed on March 6, 2017 and due to be implemented on March 16, 2017, revokes the old one, which created chaos when it was signed on January 27, 2017.
The key difference is that it drops Iraq from the list of countries banned.
The new Trump immigration ban means that:
- Foreign nationals from Sudan, Syria, Iran, Libya, Somalia and Yemen are banned from USA immigration for 90 days.
- The U.S. refugee program is suspended for 120 days.
The officials admitted the phase-in period was directly aimed at avoiding some of the problems caused by the immediacy of the original order.
Another key difference is that the new ban does not specifically target Syrian refugees. Under the old version, all Syrian refugees were barred indefinitely.
The new ban also says Canadian permanent residents from any of the six Muslim-majority countries will need to apply for a waiver to enter the U.S. (more below).
Nexus cards give pre-clearance for low-risk travellers at certain crossing points between Canada and the U.S. Holders are extensively screened by authorities from both sides of the border as part of the application process.
There have been reports of the U.S. authorities cancelling the Nexus cards of Canadians without explanation since the order was signed. This has happened to both citizens of the seven banned countries and card holders with no link to any of them.
Canadian Public Safety Minister Ralph Goodale has promised to seek clarification on this.
- Temporary Public Policy
Immigration Minister Ahmed Hussen swiftly issued a Temporary Public Policy that gives those stranded at the Canada-U.S. border special temporary residence in Canada for up to 180 days. The policy also exempted the affected individuals from paying any fees usually associated with temporary resident applications, and gave them the ability to apply for a work permit.
- Justin Trudeau tweet
Canadian Prime Minister Justin Trudeau took to Twitter to voice his support for those affected by the order. His tweet read: “To those fleeing persecution, terror & war, Canadians will welcome you, regardless of your faith. Diversity is our strength #WelcometoCanada”.
- Local-level reaction
Several of Canada’s provincial premiers and city mayors spoke out against the order, saying immigrants affected would be made welcome in their jurisdictions. Advocates also called for Canada to suspend its participation in the Canada-U.S. Safe Third Country Agreement governing the treatment of refugee claims.
- Canada’s technology sector
Technology industry leaders in Canada issued an open letter against the ban, signed by major companies including Spotify, PayPal, Google and Twitter. The letter read: “Many Canadian tech entrepreneurs are immigrants, are the children of immigrants, employ and have been employed by immigrants. As connected economies, decisions by the United States can directly impact every business north of the border. The recently signed Executive Order to block entry of citizens from seven countries has already impacted several in our community. As a community, we are all affected.”
- Canadian universities
Universities Canada said the ban would have a profound impact on campuses across the country. The huge number of students and professors in Canada on temporary visas are affected by the ban. Canadian and U.S. academics are continuously collaborating on a wide range of projects which require them to cross the border. This also goes for nationals of the seven banned countries working in America, who may wish to come to Canada for study purposes. Under the ban, they will not be allowed back into the U.S.
In the short term, probably not. In the case of visa holders, U.S. approval does not automatically mean Canadian approval.
Immigrants find themselves at the start of the Canadian temporary visa application process, which has its own security checks and processing backlog.
The only way you could get straight across the border, for visit purposes (after applying for an Electronic Travel Authorization) is if you have a passport from a visa-exempt country.
Longer term, Canada has a number of immigration programs and plans to welcome 300,000 new immigrants in 2017.
Skilled technology workers are highly sought-after, although immigrants of all kinds of backgrounds and abilities are welcomed across the border every day.
The government is currently working on a new Global Talent Visa, for which the processing time is expected to be a few weeks, although it is slated only to be open to selected trusted employers.
In the case of refugees, Canada and the U.S. are both members of the Safe Third Country Agreement, which means refugees must seek asylum in the first country at which they arrive, and cannot present themselves at the Canadian border after being rejected by the U.S.
This has been the source of some controversy since the order was signed, with calls for Canada to pull out of the agreement. This is highly unlikely.
Unless you are rejected at the Canada-U.S. border, and therefore covered by the previously mentioned public policy, Canada is probably not an option.
All travellers to the U.S. can expect increased scrutiny when crossing the border, especially those who are dual nationals from one of the banned countries, or have visited one of the countries.
Travellers should be prepared to answer detailed questions about travel history, family travel history and much more. Nothing is off the table.
If you have visited one of the seven banned countries, be ready to explain why.
All electronics are open to investigation, including phone and laptop, which you will be expected to unlock. Social media accounts, text messages and emails can and will be scrutinised.
Plan for it to take a much longer time to cross the border.
Canadian businesses and universities look set to benefit from the travel ban, which has served to make immigrants and potential immigrants feel uneasy about their status in the U.S. and how those that voted for Trump will welcome them.
The Canadian technology industry could benefit from this, by attracting skilled immigrants who would previously have been more likely to head in the direction of Silicon Valley.
Meanwhile, the tech giants who already have operations on Canadian soil could consider increasing their presence, and moving some of those no longer welcome in the U.S. north of the border.
Canadian universities are always looking to boost their international student populations, with domestic student numbers beginning to wane. A further draw is that changes were recently made to the Express Entry immigration system to make it easier for international students who graduate from Canadian universities to become permanent residents.