Travel Ban Frequently Asked Questions
Updated as of March 30, 2017 8 a.m. | Download the PDF Version
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 March 30, 2017 at 8 a.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 (firstname.lastname@example.org) as soon as possible to set up an individual consultation.
On March 15, 2017, a federal judge in Hawaii issued a nationwide temporary restraining order (TRO) blocking the six-nation travel/visa ban and suspension of refugee processing announced by President Trump’s March 6, 2017 Executive Order. This same judge granted a motion on March 29, 2017 to transform the TRO into a preliminary injunction. Unlike a TRO, a preliminary injunction will stay in place throughout the entirety of the litigation in Hawaii, absent a reversal by a higher court. Furthermore, another judge in Maryland issued a nationwide preliminary injunction against the travel/visa ban on March 15, 2017. While these court orders mean that the travel/visa ban March 6, 2017 Executive Order is not currently in effect, further litigation will likely ensue. As such, the below FAQs address issues and concerns in the event that the Executive Order is later upheld in the appeals process.
On Monday, March 6, President Trump signed a revised travel ban Executive Order entitled “Executive Order Protecting the Nation From Foreign Terrorist Entry Into the United States.” This new Executive Order revoked the prior January 27, 2017 Executive Order as of the effective date of March 16, 2017 at 12:01am EST. The new order includes the following provisions:
- Bans travel/visa applications for foreign nationals from six listed countries—Iran, Libya, Somalia, Sudan, Syria, and Yemen—for 90 days after March 16th, if they are outside of the U.S. on the effective date of the order without a valid visa;
- Does not revoke valid visas or impact lawful permanent residents (LPRs) or dual nationals so long as they have a travel document that is not from one of the six listed countries;
- Provides for heightened scrutiny of Iraqi nationals, although Iraq was removed from the list of banned countries identified in the previous Executive Order; and
- Creates a new registry documenting crimes committed by foreign nationals.
The March 6 Executive Order identifies six countries, listed below, as targets for the ban.
- Iran. The new Executive Order includes in its description of Iran the country’s designation as a state sponsor of terrorism since 1994, support of various designated terrorist groups, and lack of cooperation with the United States in counterterrorism efforts.
- Libya. The new Executive Order includes in its description of Libya the country’s status as an active combat zone, the provision of security and law enforcement functions by armed militias, the presence of violent extremist groups, Libya’s inability to secure its borders, and the suspension of the U.S. Embassy in Libya, while also noting that the Libyan government cooperates with the United States in some counterterrorism efforts.
- Somalia. The new Executive Order includes in its description of Somalia the country’s porous borders, presence of terrorist groups, lack of international recognition for Somali identity documents, and lack of capacity to sustain military pressure or investigate suspected terrorists, while also noting that the Somali government cooperates with the United States in some counterterrorism efforts.
- Sudan. The new Executive Order includes in its description of Sudan the country’s designation as a state sponsor of terrorism, the historical presence of terrorist groups, and the activity of elements of terrorist groups in the country, while also noting that Sudan’s support for al-Qa’ida has ceased and that it cooperates with the United States in some counterterrorism efforts.
- Syria. The new Executive Order includes in its description of Syria the country’s status as a state sponsor of terrorism and a base for foreign fighters, continued support for terrorist groups, allowance or encouragement of extremists passing through, and suspension of the U.S. Embassy in Syria, while also noting that the Syrian government is engaged in an ongoing military conflict against ISIS and others for control of the country.
- Yemen. The new Executive Order includes in its description of Yemen the country’s ongoing conflict, porous borders, use by terrorist groups, and suspension of the U.S. Embassy in Yemen, while also noting the Yemeni government’s support for U.S. counter-terrorism efforts, despite its inability to cooperate fully.
The January 27 Executive Order was justified by the White House based on its selection of
countries included in a bill introduced and passed by Congress last year called H.R. 158, VisaWaiver 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 the seven countries subsequently named
in the January 27 Executive Order (Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen), 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
The March 6 Executive Order states in Section 1(g) that Iraq was removed from the list because of “the close cooperative relationship between the United States and the democratically elected Iraqi government, the strong United States diplomatic presence in Iraq, the significant presence of United States forces in Iraq, and Iraq’s commitment to combat ISIS.” Furthermore, the March 6 Executive Order notes that “since [the old] Executive Order  was issued, the Iraqi government has expressly undertaken steps to enhance travel documentation, information sharing, and the return of Iraqi nationals subject to final orders of removal.”
Although the March 6 Executive Order removed Iraq from the list of banned countries, Section 1(g) provides that “[d]ecisions about issuance of visas or granting admission to Iraqi nationals should be subjected to additional scrutiny to determine if applicants have connections with ISIS or other terrorist organizations, or otherwise pose a risk to either national security or public safety.” In addition, Section 4 sets forth further information regarding the “thorough review” to which “[a]n application by any Iraqi national for a visa, admission, or other immigration benefit should be subjected.” The Executive Order notes that “[s]uch review shall include consideration of whether the applicant has connections with ISIS or other terrorist organizations or with territory that is or has been under the dominant influence of ISIS, as well as any other information bearing on whether the applicant may be a threat to commit acts of terrorism or otherwise threaten the national security or public safety of the United States.”
For a 90-day period starting on March 16, foreign nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen who are (1) outside the United States, (2) did not have a valid visa as of 5 p.m. EST on January 27, 2017, and (3) did not have a valid visa as of March 16, 2017 will not be allowed to enter the United States (subject to limited exceptions described below).
According to Customs and Border Protection, this means that “any individual who had a valid visa either on January 27, 2017 (prior to 5:00 PM) or holds a valid visa on the effective date of the Executive Order is not barred from seeking entry.”
This Executive Order does not apply to lawful permanent residents (LPRs), also known as green card holders. It also does not revoke valid visas, and it will not impact dual-citizens from one of the six countries so long as they travel with and present a passport from another non-listed country upon entry to the U.S.
The March 6 Executive Order includes a number of categorical and case-by-case exceptions. Section 3(b) states that the “suspension of entry… shall not apply to:
- any lawful permanent resident of the United States;
- any foreign national who is admitted or paroled into the United States on or after [March 16, 2017];
- any foreign national who has a document other than a visa, valid on [March 16, 2017] or issued on any date thereafter, that permits him or her to travel to the United States and seek entry or admission, such as an advance parole document;
- any dual national of a country designated under section 2 of this order when the individual is traveling on a passport issued by a non-designated country;
- any foreign national traveling on a diplomatic or diplomatic-type visa; North Atlantic Treaty Organization visa; C-2 visa for travel to the United Nations; or G- 1, G-2, G-3, or G-4 visa; or
- any foreign national who has been granted asylum; any refugee who has already been admitted to the United States; or any individual who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture.”
The new Executive Order also includes a waiver provision in Section 3(c). This provision allows for “a consular officer, or, as appropriate, the Commissioner, U.S. Customs and Border Protection (CBP), or the Commissioner’s delegee” in his/her official discretion to decide, on a case-by-case basis, to authorize issuance of a visa or permit entry to someone who would otherwise be affected by the ban. Section 3(c) indicates that this discretion can be exercised when “the foreign national has demonstrated to the officer’s satisfaction that denying entry during the suspension period would cause undue hardship, and that his or her entry would not pose a threat to national security and would be in the national interest.” The new Executive Order also lists a series of circumstances in which case-by-case waivers could be appropriate, which include:
- A foreign national who was previously admitted to the United States “for a continuous period of work, study, or other long-term activity,” was outside the country on March 16, 2017, wants to reenter the United States to resume that activity, and a denial would “impair” that activity;
- A foreign national who has “previously established significant contacts” with the United States, but is outside of the country on March 16, 2017 for work, study, or other lawful activity;
- A foreign national who seeks to enter the United States for “significant business or professional obligations” and a denial would “impair” those obligations;
- A foreign national who seeks to enter the United States to visit or reside with “a close family member (e.g., a spouse, child, or parent) who is a United States citizen, lawful permanent resident, or alien lawfully admitted on a valid nonimmigrant visa,” and a denial of entry would cause “undue hardship;”
- A foreign national who is an infant, a young child or adoptee, an individual needing “urgent medical care,” or an individual “whose entry is otherwise justified by the special circumstances of the case;”
- A foreign national employed by, or on behalf of, the U.S. government who can document “faithful and valuable service” to the government, or an eligible dependent of such an employee;
- A foreign national who is traveling for purposes “related to” an International Organizations Immunities Act (IOIA) designated organization, traveling “for purposes of” conducting meetings with the United States government, or traveling “to conduct business on behalf of” a non-IOIA designated organization;
- A foreign national who is “a landed Canadian immigrant” who applies for a visa at a location within Canada; or 5
- A foreign national who is traveling as a United States government-sponsored exchange visitor.
The Customs and Border Protection (CBP) website provides the following guidance: Regarding the process for overseas travelers affected by the new Executive Order to request a waiver, CBP indicates that “[w]aivers for overseas travelers without a valid U.S. visa will be adjudicated by the Department of State in conjunction with a visa application.”
Regarding the application of waivers to individual cases, CBP states that “[p]er the Executive Order, the Departments of Homeland Security and State can review individual cases and grant waivers on a case-by-case basis if a foreign national demonstrates that his or her entry into the United States is in the national interest, will not pose a threat to national security, and that denying entry during the suspension period will cause undue hardship.”
With regard to refugees, Section 6(c) states that, “the Secretary of State and the Secretary of 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 entry of such individuals as refugees is in the national interest and does not pose a threat to the security or welfare of the United States, including in circumstances such as the following: the individual’s entry would enable the United States to conform its conduct to a preexisting international agreement or arrangement, or the denial of entry would cause undue hardship.”
There is little other information regarding waivers or exemptions at this time.
According to the Executive Order, during the 90-day period banning travel to the United States for nationals from the six listed countries described above, the “Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall conduct a worldwide review to identify whether, and if so what, additional information will be needed from each foreign country to adjudicate an application by a national of that country for a visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual is not a security or public safety threat. The Secretary of Homeland Security may conclude that certain information is needed from particular countries even if it is not needed from every country.” These agencies can recommend to the President that countries be removed from the list after they have provided the information the United States is seeking.
There is a concern that for some listed countries, including Iran and Syria, the 90-day travel ban may become permanent because the countries do not have diplomatic relationships with the United States, making the facilitation of information sharing and cooperation difficult, if not impossible.
Over time more countries may be added to the list. Specifically, section 2(e) establishes a timeline by which, within 20 days of the Executive Order’s March 16 effective date, the agencies can provide to the President the names of more countries that in their view provide insufficient information to enable the U.S. to adjudicate visa issuance and other questions of entry relating to 6 their nationals. The agencies will also identify the additional information that they need to make these adjudications. If those countries do not provide that information within 50 days of the notice, they will be included in a “Presidential proclamation that would prohibit the entry of appropriate categories of foreign nationals of countries that have not provided the information requested until they do so or until the Secretary of Homeland Security certifies that the country has an adequate plan to do so, or has adequately shared information through other means.”
A detailed comparison of the two orders can be found here. In short, the following provisions were removed and not included in the March 6 Executive Order:
- Categorical, denial of entry to Syrian refugees for an indefinite period;
- Iraq from the list of banned countries;
- Visa revocations;
- Restrictions on green card holders;
- Restrictions on dual nationals from the six listed countries so long as they have a passport from another non-listed country.
The following provisions remained the same:
- The March 6 Executive Order still lists Iran, Libya, Somalia, Sudan, Syria, and Yemen as temporarily banned countries.
- The March 6 Executive Order still cuts the number of refugees who may be admitted in fiscal year 2017 from 110,000 to 50,000.
The following language was added:
- An explanation for why each country was listed.
- A registry of crimes committed by foreign nationals will be created.
A redlined copy of the March 6 Executive Order, comparing it with the January 27 Executive Order, can be found here.
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:
- 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”).
- 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).
- 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.
- 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 7 revoked. The State Department subsequently clarified that the revocation would not affect the legal status of those already in the United States.
The Department of Homeland Security stopped enforcing the January 27 Executive Order 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.
On February 10, 2017, one judge from the Ninth Circuit Court of Appeals requested that a vote be taken as to whether the three-judge decision on February 9 should be reconsidered by the whole. Briefs were due on February 16, 2017. In its brief, the government did not seek rehearing of the court ruling and instead alluded to creating a new Executive Order. Late February 16, the Ninth Circuit issued the following order: “The United States has represented to the Court that the President intends to issue a new Executive Order and has urged the Court to hold its consideration of the case until the President issues the new Order.” The United States has further represented that it will inform the Court of any new developments. Proceedings have not moved forward as we await orders from the court.
Section 13 of the March 6 Executive Order officially revoked the January 27 Executive Order, with an effective of 12:01am EST on March 16, 2017. A temporary restraining order blocking the new Executive Order from taking effect was issued by the district court in Hawaii on March 15, 2017.
- Hawaii filed the first legal challenge to the March 6th Executive Order, on the grounds that “while the new directive would address legal issues that had arisen around the ban” the “same basic policy outcomes” would result from the new text and that it would still be targeted at Muslims. A federal judge in Hawaii heard arguments on March 15, and issued a nationwide order blocking Trump’s ban on travel. The same judge later granted a motion to transform that initial temporary restraining order into a preliminary injunction on March 29, 2017.
- The State of Washington on March 9, sought to have the February 3rd suspension of the first travel ban applied to the March 6 Executive Order because the core constitutional problems remain the same. On Friday, the same judge who ordered the nationwide stay on the executive order failed to apply it for procedural reasons.
- The State of Wisconsin successfully retrieved a temporary restraining order on the revised ban on behalf of a specific family alone.
- Maryland, Oregon, and Minnesota are joining Washington’s lawsuit. Maryland formally joined on Monday, March 13, 2017, and issued a separate order also blocking the effects of the travel ban on March 15.
- In the immediate aftermath of the January 27 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:
- 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.
- 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.
- 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.
- 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 to enter the United States.
- Los Angeles, CA: 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.
- 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.
- The ACLU has argued that the challenges to the January 27 Executive Order should be allowed to continue in court because the new travel ban continues to target Muslims, and the issues are therefore not moot. 9
- Several states challenged the initial executive order. For example, Washington State filed a lawsuit in federal district court challenging the constitutionality of the ban and seeking a temporary restraining order halting its implementation. The suit was joined by several other states, including Massachusetts, Minnesota, New York, and Virginia. A district court in Washington temporarily blocked implementation of the ban, and the federal government appealed. That appeal was dropped in the wake of the March 6 Executive Order.
- The ACLU-Northern California filed a lawsuit in federal district court in California challenging the ban on behalf of student visa holders. Following the signing of the March 6th executive order, the ACLU of Northern California announced it was amending its complaint to challenge the new order.
- 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.”
- 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.
- ACLU-Washington 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.
- Many of the lawsuits filed on behalf of individuals who had valid U.S. visas or green cards but were detained at the airport upon their return to the U.S. were resolved, with the plaintiffs allowed to return to the U.S. For example, a medical resident with a Syrian passport and U.S. visa was allowed to re-enter as were several other Syrian visa holders.
Customs and Border Protection has issued this guidance on the matter:
Q24. Are international students, exchange visitors, and their dependents from the six countries (such as F, M, or J visa holders) included in the Executive Order? What kind of guidance is being given to foreign students from these countries legally in the United States?
The Executive Order does not apply to individuals who are within the United States on the effective date of the Order or to those individuals who hold a valid visa. Visas which were provisionally revoked solely as a result of the enforcement of Executive Order 13769 are valid for purposes of administering this Executive Order. Individuals holding valid F, M, or J visas may continue to travel to the United States on those visas if they are otherwise valid. 10 Please contact the State Department for information about how the Executive Order applies to visa applicants.
Q25. What happens to international students, exchange visitors or their dependents from the six countries, such as F, M or J visa holders if their visa expires while the Executive Order is in place and they have to depart the country?
The Executive Order does not affect F, M, or J visa holders if they currently have a valid visa on the effective date or held a valid visa on January 27, 2017 prior to the issuance of the Executive Order. With that said, travelers must have a valid visa to travel to the United States, regardless of the Executive Order. Travelers whose visa expires after the effective date of the Executive Order must obtain a new, valid visa to return to the United States.
The State Department has yet to issue guidance on this matter.
Although the Executive Order provides a process by which more countries could be added to the travel ban, Secretary Kelly testified before the House Homeland Security Committee that “we are right now contemplating no other countries.” His testimony occurred prior to the signing of the second executive order on March 6, 2017. Pursuant to the March 6 Executive Order, 70 days after March 16, the government may add more countries to the suspended travel list after a review of the current status of information sharing between the two countries. Furthermore, the Executive Order states that at “any point” the Secretary of Homeland Security, in consultation with the Secretary of State and the Attorney General, may recommend more countries to be added to the list to the President.
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 prior to leaving the country.
We strongly advise that you consult with the Harvard International Office, the Harvard Immigration and Refugee Clinical Program, or a reputable immigration attorney prior to leaving the country. It is highly recommended that people consider the possibility that they will not be allowed to re-enter should they travel and make their decision to travel weighting that possibility. Individuals with visas should consult with the International Office and make sure that their visas are valid and in good standing and should plan to return well before their visa expires.
In any event, before you travel, we strongly 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 as Attorney or Accredited Representative, 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 11 your flight, depending on the status of the ongoing litigation and whether the travel ban is being enforced or not. It is important that all Harvard students, faculty, and staff register their travel with the Harvard Travel Registry, available through Global Support Services.
If an immigration officer asks you to sign a document, it is recommended that you do not do so before you have had the chance to consult an attorney. If you are asked to sign a form surrendering your visa or green card, it is recommended that you refuse to do so and request to speak to your attorney before doing so.
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 email@example.com for more information.
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.
On March 9th, 2017, the Electronic Frontier Foundation (EFF) issued a guide to protecting your digital privacy if you are concerned about the recent Customs and Border Protection searches of personal technology at the border. EFF provides travelers tips on what to do before getting to the border, once you are at the border, and what can be done afterwards. Furthermore, the guide sets forth the relevant law in this area and provides insight into the technology behind privacy protection. EFF has also created a pocket guide for concerned travelers to print out and carry as they cross the border.
The ACLU has prepared a “Know Your Rights” document for travelers, which addresses the question of whether CBP can search electronic devices. The ACLU advises that 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. The same should be true for lawful permanent residents who have maintained their status—green cards cannot be revoked without a hearing before an immigration judge. Nonimmigrants 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.
Customs and Border Protection has issued the following guidance:
“All international travelers arriving to the U.S. are subject to CBP inspection. This inspection may include electronic devices such as computers, disks, 12 drives, tapes, mobile phones and other communication devices, cameras, music and other media players and any other electronic or digital devices.
Various laws that CBP is charged to enforce authorize searches and detention in accordance with 8 U.S.C. § 1357 and 19 U.S.C. §§ 1499, 1581, 1582. All persons, baggage, and merchandise arriving in, or departing from, the United States are subject to inspection, search and detention. This is because CBP officers must determine the identity and citizenship of all persons seeking entry into the United States, determine the admissibility of foreign nationals, and deter the entry of possible terrorists, terrorist weapons, controlled substances, and a wide variety of other prohibited and restricted items.
Keeping America safe and enforcing our nation’s laws in an increasingly digital world depends on our ability to lawfully examine all materials entering the U.S. Additional information on electronic searches is available here and here.”
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, as well as a right to not be selected for questioning because of your religion, race, national origin, gender, ethnicity, or political beliefs. Customs and Border Protection, however, can ask about your immigration status when you are entering or leaving the country.
- If you are a non- citizen, Customs and Border Protection can determine whether or not you can enter the country, and refusing to answer questions can lead to denial of entry. If you are subjected to intrusive questioning, you can ask to speak with a lawyer, though you do not have a right to consult a lawyer before answering.
- If you are a lawful permanent resident, Customs and Border Protection can determine whether or not you can enter the country as well. If you are subjected to intrusive questioning, your right to speak to a lawyer varies with circumstances. You may ask for one, but be aware that in some circumstances, officers can deny you access to a lawyer before you answer their questions. As a lawful permanent resident, you have the right to a hearing before an immigration judge regarding your ability to remain in the United States.
- If you are a U.S. citizen, you are not required to answer Customs and Border Protection questions, though refusing to answer questions about the nature and purpose of your travel may generally delay you. If you are subject to intrusive questioning, you have the right to talk to a lawyer before answering, but may be subject to delays or further inspection for refusal to cooperate.
- If informed that you are under arrest or suspected of having committed a crime, any individual, U.S. citizen, lawful permanent resident, or non-United States citizen, has the right to speak to an attorney prior to answering any questions.
Though you have the right to not be selected for a personal search or secondary inspection based on your religion, race, national origin, gender, ethnicity, or political beliefs, Customs and Border Protection can stop, detain, and search any person or item at the border, including laptops or cellphones, even if there is nothing suspicious about the person or item.
The question of whether or not you have the right to refuse a request to provide your laptop password or unlock your mobile phone continues to be a contested legal issue. U.S. citizens, however, cannot be denied entry for refusing to provide passwords or unlock devices, though refusal to do so may lead to delay, further questions, and/or officers seizing the device for further inspection. The same should be true for lawful permanent residents who have maintained status—green cards cannot be revoked without a hearing before an immigration judge. Nonimmigrants may, however, be denied entry. If your device is searched or seized, write down the name of the officer and get a receipt for your device.
Discriminatory Questioning or Removal by Airline Employees
A pilot can refuse to fly a passenger if he or she reasonably believes and observes that the passenger is a threat to the safety of the flight. A pilot may not, however, question you or refuse to allow you to board a flight because of your religion, race, national origin, gender, ethnicity, or political beliefs.
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 Jan. 27 Executive Order, which has since been enjoined. If you believe that you have a valid visa to enter the United States and airlines are stopping you from traveling, 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 listed countries flying into Logan Airport, you should call 617-903-8943 or email firstname.lastname@example.org to speak with a lawyer.
There is an app to connect with a lawyer in certain airports, including Logan, 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. It is important that all Harvard students, faculty, and staff register their travel with the Harvard Travel Registry, available through Global Support Services.
Unfortunately, CBP has only stated that those with currently valid visas will be allowed to travel. We do not know how visa applications will be handled should they expire, though in some cases it may be possible to obtain a waiver. See answer to the above FAQ: “Are there exceptions to the travel ban?”
The President issued two documents relevant to the question of immigration benefits and vetting: (1) The March 6, 2017 Executive Order and (2) the Presidential Memorandum on Implementing Immediate Heightened Screening and Vetting of applications for Visas and Other Immigration Benefits.
The Executive Order states that valid visas will not be revoked, and there are categorical waivers that can be applied for discussed in above in response to the FAQ, “Are there exceptions to the travel ban?” The Executive Order states, however, that an Iraqi national applying for a visa or immigration benefit should be subjected to “thorough review.”
Section 4 of the Executive Order states, “An application by any Iraqi national for a visa, admission, or other immigration benefit should be subjected to thorough review, including, as appropriate, consultation with a designee of the Secretary of Defense and use of the additional information that has been obtained in the context of the close U.S-Iraqi security partnership, since Executive Order 13769 was issued, concerning individuals suspected of ties to ISIS or other terrorist organizations and individuals coming from terrorists controlled or formerly controlled by ISIS.”
In the Memorandum, the President has called on the Secretary of State, the Attorney General, and the Secretary of Homeland Security to begin implementing protocols they believe are appropriate, lawful and will “enhance the screening and vetting of applications for visas and all other immigration benefits, so as to increase the safety and security of the American people.” The memorandum calls for “ensuring the proper collection of all information necessary to rigorously evaluate all grounds of inadmissibility or deportability, or grounds for the denial of other immigration benefits.”
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 on 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. For developments and updates, we recommend visiting americanimmigrationcouncil.org.
Your travel plans depend on your immigration status and your destination. If you are a United States citizen you will be able to leave and return to the country. If you are a green card holder, according to DHS, the White House, and CBP, you are exempt from the travel ban. It is still wise to contact an immigration attorney prior to leaving the country. If you are a visa holder from one of the six listed countries and Iraq, it is highly recommended you do not leave the country, and if you do so that you contact an immigration attorney prior to leaving.
If you are traveling to the 6 listed countries, and Iraq, we urge cautious appraisal of any retaliatory policies they may have been implemented, and that you seek the advice of an immigration attorney. Finally, please alert Harvard of your travel plans by registering your travel with the International Travel Registry: https://www.globalsupport.harvard.edu/travel-tools/harvard-travel-registry.
Though citizens of the six countries listed in the March 6th executive order who are already in the United States on visas or with green cards should be able to travel freely within the United States, it is possible that you could face additional scrutiny from law enforcement offices, particularly in airports. The ACLU has published several “Know Your Rights” documents which may be useful in planning for how to navigate encounters with law enforcement. Those documents can be found here and here. Please also consider traveling with your visa and passport whenever possible.
The Department of Homeland Security has posted a fact sheet and Q&A associated with the March 6th order. Both are available on the DHS webpage under the “Fact Sheets” tab.
Offer to be a volunteer interpreters or tutor
Attorneys have asked for Arabic and Farsi interpreters at airports, and legal service organizations can benefit from the interpretation of other languages as well, especially Spanish. For those who can interpret, 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
- Senate and House Committees on Homeland Security:
- State Attorneys General suing the Administration of President Trump over the Travel Ban:
- Bills under discussion in the Senate to block Trump’s March 6th executive order
- List of Senators and Representatives and their positions on Trump’s January 27th executive order