'Exceptions,' Provisions for 'Waivers' Abound in Trump's New Immigration Order

The new order, which takes effect in 10 days, bans citizens of the six countries who lack a U.S. visa, but unlike the first order it exempts green card holders, foreign nationals holding dual U.S. citizenships or who have been granted diplomatic asylum, or refugees who already have been admitted to the U.S. The original order gave priority to religious-persecution claims by refugees if they were non-Muslims in the targeted Muslim-majority countries. But the revised order does not explicitly prioritize refugees based on religion.

The revised order will honor "valid" U.S. visas that are granted until the order takes effect at 12:01 a.m. EDT on March 16, it says. Travelers whose previously granted U.S. visas were revoked under the original Jan. 27 order "shall be entitled to a travel document confirming that the individual is permitted to travel to the United States and seek entry," the new order says. Washington and Minnesota in their court papers estimated that tens of thousands of previously issued visas were revoked under the original order.

Iraq was dropped from the original list of banned countries because it “presents a special case,” the revised order says. Factors working in Iraq's favor included its close diplomatic relations with the U.S. and recent improvements the Iraqi government made in vetting Iraqi nationals for travel overseas, the order says. Removing Iraq from the list of seven targeted countries was a "result of significant pushback from officials concerned that the ban punished Iraqis who risked their lives acting as interpreters for U.S. military personnel, is detrimental to our diplomatic relations, and did not reflect Iraq’s commitment to fighting ISIS in the region,” said a summary by Kristie De Peña, immigration counsel at Niskanen Center, a think tank that advocates for immigration law overhaul.

Trump's revised order gives Customs and Border Protection broad discretion to grant waivers “on a case-by-case basis” to nationals from the six banned countries if they fall into one or more of nine scenarios where such waivers would be deemed “appropriate,” the order says. Several of the listed waiver scenarios would appear to grant entry to the types of foreign nationals who otherwise would have been denied entry under the first immigration order, much to the disdain of the tech firms that backed Washington and Michigan in their court fight.

CBP could waive the ban on a foreign national of the six countries if they previously were admitted to the U.S. “for a continuous period of work, study, or other long-term activity,” and are outside the U.S. when the order takes effect and are seeking to re-enter the U.S. “to resume that activity,” the order says. A waiver could be warranted if “the denial of reentry" during the 90-day ban "would impair that activity,” the order says. Waivers also could be granted to foreign nationals who “previously established significant contacts” with the U.S., but were outside the U.S. when the order took effect “for work, study, or other lawful activity.”

Waivers also could be granted to foreign nationals who seek to enter the U.S. for “significant business or professional obligations and the denial of entry during the suspension period would impair those obligations,” the order says. It also allows waivers for foreign nationals who seek to enter the U.S. to visit or live with a “close family member” who is a U.S. citizen or green card holder, if “the denial of entry during the suspension period would cause undue hardship,” it says. Waivers also would be appropriate if the foreign national is an infant, young child or adoptee, or needs urgent medical case or is “someone whose entry is otherwise justified by the special circumstances of the case.”

Trump’s original immigration order had “immediate, adverse effects on the employees of American businesses,” including workers from major companies who became “ensnared” in the order’s travel restrictions, said a Feb. 5 amici brief signed by dozens of prominent tech companies filed at the 9th U.S. Circuit Court of Appeals in San Francisco backing Washington and Minnesota in their fight to keep Trump’s now suspended order from being reinstated (see 1702060016). Though the revised order would grant exceptions and waivers to many of the types of tech employees caught in unexpected travel limbo by the first order, the tech firms also objected in their amici brief on the grounds that “the problems that render the Executive Order harmful to businesses and their employees also make it unlawful.”

For example, Trump’s original order “discriminates on the basis of nationality,” and therefore is unconstitutional, the tech firms’ Feb. 5 brief said. Though few, if any, tech firms or groups reacted to the revised order Monday, pending their review of the document, it seems questionable that the tech industry would abandon with the new order the discrimination-by nationality allegations it previously raised on constitutional equal-protection grounds. New York State Attorney General Eric Schneiderman, who backed Washington and Minnesota in their legal fight against the original order, argued as much in a statement Monday. "While the White House may have made changes to the ban, the intent to discriminate against Muslims remains clear," said Schneiderman. "This doesn’t just harm the families caught in the chaos of President Trump’s draconian policies -- it’s diametrically opposed to our values, and makes us less safe.”

On where the legal case goes from here, Washington Attorney General Bob Ferguson is “carefully reviewing” the new order “to determine its impacts on Washington State and our next legal steps,” he said in a Monday statement. By revoking his first order, Trump “makes one thing perfectly clear: His original travel ban was indefensible -- legally, constitutionally and morally,” said Ferguson, whose legal team won the injunction in U.S. District Court in Seattle stopping the travel ban from being enforced and was successful at the 9th Circuit in keeping the ban from being reinstated.

But the Justice Department believes the revised order, “just as the first, is a lawful and proper exercise of presidential authority,” said Attorney General Jeff Sessions in a Monday statement. Trump is “empowered under the Constitution and by Congress to make national security judgments and to enforce our immigration policies in order to safeguard the American public,” said Sessions, who hadn't been confirmed by the Senate when Trump signed the first immigration order. House Judiciary Committee Chairman Bob Goodlatte, R-Va., in a Monday statement hailed Trump “for remaining committed to protecting our nation from foreign terrorists” by signing the revised immigration order.