President Trump on Monday signed a new executive order temporarily barring nationals of six Muslim-majority countries -- Iran, Libya, Somalia, Sudan, Syria and Yemen -- from entering the U.S. after enforcement of an earlier entry ban was halted by federal courts. The revised ban, which goes into effect March 16, does not apply to lawful permanent residents of the U.S. and individuals from the six nations who already have valid visas, including student and exchange visas.
The exemption of current visa holders from the entry ban represents a notable change from an original executive order authorizing an entry ban, which was signed by Trump on Jan. 27 and followed by the State Department provisionally revoking most visas granted to individuals from the affected countries (an action it subsequently reversed in response to court rulings). Some international students and scholars who held otherwise valid visas to enter the U.S. found themselves stranded abroad after the first order was signed, unable to board U.S.-bound planes to return to their campuses.
In another change from the previous order, the new order excludes Iraq from the list of banned countries.
Higher education groups largely described the newly revised entry ban as an improvement from the original but still highly problematic for international educational exchange and research collaborations. The order could depress enrollments of new applicants to American universities from the six countries and will prevent universities and university hospitals from bringing in new postdoctoral scholars, visiting faculty members and others from the six countries who don’t already have visas for 90 days.
“While the revised executive order is more limited in scope than the first one, the impact is significant,” Peter McPherson, the president of the Association of Public and Land-grant Universities, said in a statement. “The effect of this new order goes well beyond just the higher education community, but as a public university association, we are particularly aware of how this will impact campuses. During the 2015-16 school year, more than 15,450 students and over 2,100 scholars from the six countries targeted in this ban studied and conducted research at U.S. universities. The pipeline of new students and scholars from those countries -- many of whom are in the midst of the college application process -- is now cut off. Public research universities are also concerned that the new order could have a chilling effect on students and scholars in other countries who are considering whether to study and conduct research in the United States or elsewhere.”
The Trump administration has justified the temporary entry ban as necessary to prevent the entry of terrorists while the federal government reviews screening and vetting procedures. Trump has said he wants to put in place "extreme vetting."
"As threats to our security continue to evolve and change, common sense dictates that we continually re-evaluate and reassess the systems we rely upon to protect our country," Secretary of State Rex Tillerson said in a briefing Monday. "While no system can be made completely infallible, the American people can have high confidence we are identifying ways to improve the vetting process and thus keep terrorists from entering our country."
"This executive order seeks to protect the American people as well as lawful immigrants by putting in place an enhanced screening and vetting process for visitors from six countries," said Jeff Sessions, the U.S. attorney general. "Three of these nations are state sponsors of terrorism. The other three have served as safe havens for terrorists … countries where governments have lost control of their territory to terrorist groups like ISIL or Al Qaeda and its affiliates. This increases the risk that people [who] are admitted here from these countries may belong to terrorist groups or may have been radicalized by them. We cannot compromise our nation's security by allowing visitors entry when their own governments are unable or unwilling to provide the information we need to vet them responsibly, or when those governments actively support terrorism. This executive order responsibly provides a needed pause so we can carefully review how we scrutinize people coming here from these countries of concern."
After the review period, the text of the executive order states that "the secretary of homeland security, in consultation with the secretary of state and the attorney general, shall submit to the president a list of countries recommended for inclusion 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. The secretary of state, the attorney general or the secretary of homeland security may also submit to the president the names of additional countries for which any of them recommends other lawful restrictions or limitations deemed necessary for the security or welfare of the United States."
The new version of the executive order, which replaces the original, repealed order, also calls for the suspension of refugee processing for 120 days and caps the number of refugees to be admitted to the U.S. in fiscal year 2017 at 50,000, less than half the Obama administration's target of 110,000.
Stephen Yale-Loehr, an immigration law expert and professor at Cornell University Law School, described the newly revised order as “essentially old wine in a new bottle. It assumes that travelers from the six Muslim-majority countries and all refugees are inherent security risks. Analysts in the intelligence unit at the Department of Homeland Security (DHS), however, found little evidence that citizens of the seven countries included in the original travel ban pose a terror threat to the United States. The draft DHS report concluded that citizenship is an 'unlikely indicator' of terrorism threats to the United States and that few people from the countries in the original travel ban have carried out attacks or been involved in terrorism-related activities in the United States.” (An Associated Press article about the draft DHS report referenced by Yale-Loehr, including a link to the document, is available here.)
“The revised executive order will not quell litigation or concerns,” Yale-Loehr continued. “U.S. relatives will still sue over the inability of their loved ones to join them in the United States. U.S. companies may sue because they cannot hire needed workers from the six countries. And U.S. universities will worry about the impact of the order on international students’ willingness to attend college in the United States.”
Enforcement of Trump’s original entry ban was halted by federal courts in response to a lawsuit filed by the states of Minnesota and Washington. Harm to public universities -- and to their students and faculty -- was key to establishing the states' standing to sue in that case.
In upholding a temporary restraining order preventing the government from enforcing the entry ban, the U.S. Court of Appeals for the Ninth Circuit ruled last month that the federal government had not shown it was likely to prevail on further appeal in regards to the states' claim that the ban violates due process rights of individuals from the affected countries. And while the court reserved judgment on the states' claims that the ban violates the establishment and equal protection clauses of the Constitution "because it was intended to disfavor Muslims," the unanimous ruling by a panel of three judges noted the "serious nature of the allegations the states have raised with respect to their religious discrimination claims."
During the campaign Trump called for "a total and complete shutdown of Muslims entering the United States." David Cole, the legal director for the American Civil Liberties Union, wrote an article on the organization's website titled "We’ll See You in Court, 2.0: Once a Muslim Ban, Still a Muslim Ban."
"The new order will be less catastrophic in its rollout than the first, both because it exempts those who already have visas and because it will not go into effect until March 16. But it’s still religious discrimination in the pretextual guise of national security. And it’s still unconstitutional," Cole wrote.
Many college leaders and associations issued statements condemning the original entry ban for inhibiting universities' ability to attract top talent and for being contrary to core values of higher education including internationalism and multiculturalism. In various statements issued Monday, higher education groups said they remain concerned about the new ban as well.
"The president’s new executive order on immigration -- albeit an improvement over the original order banning immigrants from seven predominantly Muslim countries -- remains overly broad in scope and threatens to adversely impact higher education in America," the American Association of State Colleges and Universities said in a statement. "While we understand and respect the president’s stated goal of securing our homeland, we also believe that a categorical ban on the entry of individuals based purely on national origin will undermine the ability of our public institutions to attract the best minds to teach and study at our state colleges and universities."
Molly Corbett Broad, president of the American Council on Education, issued a statement welcoming "the Trump administration’s effort to clarify the executive order first issued on Jan. 27, 2017," and described the new order as "a step in the right direction."
"Yet while the revised order has narrowed the number of people impacted by the travel ban, we fear that those still excluded -- coupled with the faulty initial rollout and the harsh rhetoric that often accompanies today’s public policy discussions about immigration -- still creates a climate where it is far more difficult for international students and scholars to view this country as a welcoming place for study and research," Broad said. "When these individuals come to the United States, they bring their creativity and intellectual talents to our country and leave with a direct experience of a democratic society and a free market. It is in America’s interest that the necessity of protecting the border from those who wish us harm does not undermine our ability to attract the most talented students and scholars to our shores."
A frequently asked question document posted by the Department of Homeland Security specifically addresses questions on the subject of current F, J or M student or exchange visa holders. "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 FAQ asks.
The answer (in part): "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 …. Individuals holding valid F, M or J visas may continue to travel to the United States on those visas if they are otherwise valid."
The FAQ states that visas will not be revoked solely on the basis of the order. The order includes provisions for case-by-case waivers to the entry ban, and cites as one example of an appropriate circumstance for such a waiver a case in which "the foreign national has previously been admitted to the United States for a continuous period of work, study or other long-term activity, is outside the United States on the effective date of this order, seeks to re-enter the United States to resume that activity, and the denial of re-entry during the suspension period would impair that activity."
"The revised travel ban’s loosening on its restrictions for current visa holders may reduce some of the concerns of current international students and scholars," said Hilary Kahn, the president of the Association of International Education Administrators.
"However, the new travel ban and also the temporary suspension of expedited processing for H-1B visa petitions will have serious implications for the international education community. International student applications are already down for many of our member institutions, and many current students and scholars will still not be comfortable traveling," Kahn said. "While Iraq has been removed from the list, there are still six other countries remaining, and there is no doubt that international education is only beginning to feel the immediate and broader impact of these restrictions. As AIEA said in its earlier statement of Jan. 30, we believe that this is a time when international educators cannot be neutral, and we continue to call on our colleagues to advocate for cross-cultural understanding and the international exchange of people and ideas."
"We are hopeful that the administration’s executive order imposing a travel ban from selected countries will cause less immediate disruption to university campuses than the Jan. 27 executive order it replaces," said Mary Sue Coleman, the president of the Association of American Universities, in a statement. "The new exemption for current visa and green-card holders from the six affected countries means that students and faculty already on university campuses can, for the most part, leave the country and re-enter without being automatically prevented from returning. We are also pleased that the new order provides for a case-by-case waiver process for individuals from these six countries and specifically cites study and work as circumstances in which case-by-case waivers might be appropriate."
"Nevertheless, although we firmly agree with President Trump that it is essential that the federal government protect our country from those who would harm it, we remain concerned that the new order, like its predecessor, poses a fundamental long-term threat to America’s global leadership in higher education, research and innovation. Among other things, the new order will still limit entry of thousands of gifted students and faculty from Iran, Libya, Somalia, Sudan, Syria and Yemen who wish to come to the United States to study, teach and conduct cutting-edge research and scholarship," Coleman continued.
"Perhaps most alarmingly, this order conveys the same damaging message to talented people from the six affected countries, as well as others: you are no longer welcome here. This message is especially clear in the absence of a statement by the president that America needs to remain the destination of choice for the world’s most talented students, scientists, engineers and scholars."