Overview
There have been a number of important clarifications and developments following President Trump’s issuance of the immigration and travel-related Executive Order (EO), “Protecting the Nation from Foreign Terrorist Entry into the United States.” The application of the EO to dual nationals is a vital issue for many; the following explains the most recent guidance and options for dual nationals who are citizens or nationals of one of the seven countries subject to a temporary US entry ban.
Background: Executive Order Travel Restrictions
As has been widely reported, a January 27 EO prohibits citizens and nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen from entering the US. We warned of the travel restrictions in our recent advisory and indicated that portions of the EO were fluid and subject to clarification. One of these areas of clarification involves dual nationals (e.g., an individual born in Iran and holding citizenship from Canada or the UK). These individuals can potentially enter the US, under the requirements explained in this alert.
The EO travel restrictions do not apply to US citizens, whether native-born or naturalized. Additionally, Department of Homeland Security (DHS) policy allows US permanent residents (green card holders) who are citizens or nationals of a listed country to enter the US, absent significant derogatory information indicating a serious threat to public safety and welfare. However, all persons seeking to enter the US are subject to routine criminal and security related inspections.
Dual Nationals: Travel Eligibility Based on Passport Presented
Initially, the EO travel ban was applied to all citizens and nationals of the listed countries (with the exception of US citizens). That is, the ban was applied to individuals who were citizens and nationals of the listed countries, even if they were dual nationals holding passports of a country which was not listed (other than a US passport). Since that time, US Customs and Border Protection (CBP) has issued FAQs, stating dual nationals are allowed to enter, if they can present passports/travel documents from a non-listed country. These FAQs include:
Q: Does “from one of the seven countries” mean citizen, national or born in?
A: Travelers are being treated according to the travel document they present.
Q: Does this Executive Order apply to dual nationals of the seven countries who want to enter the United States? If they apply for entry based upon their citizenship from one of the countries NOT on the list, will they be allowed entry?
A: Travelers are being processed and, when eligible, admitted according to the travel document they present.
This guidance means that an individual who presents a valid passport from a non-listed country will be processed by CBP based upon that passport only. When determining whether or not an individual is subject to the temporary ban, the CBP review is limited to the passport presented. If that passport is from a non-restricted country, the ban does not apply, regardless of country of birth or the existence of a second passport issued by a listed country.
Dual Nationals: Visa must be in Non-Listed Country Passport
There is an important nuance for dual nationals traveling on immigrant (permanent) or non-immigrant (temporary) visas. While they are not banned from traveling based on a non-listed country’s passport, their US visa “stamp” must also be contained in the same, non-banned country’s passport. As clarified in the CBP FAQs:
Q: Can a dual national traveling with a passport from an unrestricted country travel to the United States?
A: Dual nationals with a valid immigrant or nonimmigrant visa in a passport issued by any country not restricted under the Executive Order will be permitted to apply for admission to the United States.
This nuance is likely tied to the execution of the portion of the EO which allowed for the revocation of the existing visa “stamps” of foreign nationals from the listed countries. Hence, even if an individual has passports from both a listed and non-listed country, any US visa in a passport from one of the listed countries is now invalid. The US Department of State (DOS) has provisionally revoked the nonimmigrant and immigrant visas issued to nationals of the listed countries, with limited exception for diplomats and other categories not subject to the travel ban.
Implications of Visa Revocation
A visa “stamp” is a travel document, not an immigration status. The provisional visa revocation, discussed above, applies to the travel document issued by a US consulate or embassy. This does not impact the immigration status of individuals who are lawfully present in the US. They continue to remain in lawful status for the duration granted prior to the EO. However, the consequence will be triggered by travel abroad, as the visas issued in listed country passports are all void as a result of the EO. This means that, even after the travel ban is lifted, these individuals will need to obtain new visas in order to reenter the US. This aspect of the EO also means that a dual national who is outside of the US must use a passport from a non-listed country and, if a visa is required, the visa “stamp” must be within the non-listed passport.
Dual Nationals Needing Visas to Enter to the US
The CBP has also confirmed that dual nationals are allowed to request visas at US consulates and embassies using a passport from a non-listed country. The DOS is permitted to issue both immigrant and non-immigrant visas to dual nationals, based upon presentation of the appropriate passport. Click here for the DOS announcement regarding the EO. This is clarified in the CBP FAQs:
Q: Can a dual national who holds a nationality with a restricted country and is currently overseas apply for an immigrant or nonimmigrant visa to the United States?
A: The Department of State’s Posts are allowed to process visa applications and issue nonimmigrant and immigrant visas to otherwise eligible visa applicants who apply with a passport from an unrestricted country, even if they hold dual nationality with a restricted country.
These individuals, even if otherwise eligible for the requested visa classification, should expect their applications to undergo a very high level of scrutiny and should anticipate delays in the visa application process.
Recommendations
Dual nationals should carry the guidance discussed above when traveling, as it may be helpful if issues arise at any point in the journey. These nuanced distinctions are posing some difficulties for airlines, thus, those dual nationals who are currently in the US are still advised to refrain from non-emergency travel outside the US.
If you have questions about this advisory or questions about related immigration changes, please contact Elizabeth LaRocca at +1 202 429 1351 and Dana Delott at +1 202 429 6498 in our Washington office.