Sources said the new order will clarify a point that caused confusion the first time around: The executive order will not impact green card holders.
"The President is contemplating releasing a tighter, more streamlined version of the first executive order," Homeland Security Secretary John Kelly said at the Munich Security Conference over the weekend. Acknowledging the rushed rollout of the previous order that caused chaos in airports across the country and widespread demonstrations, Kelly said that officials are working on a "phase in" period for parts of the order to take effect.
The new order is also expected to address concerns of the 9th Circuit federal appeals court, which blocked the original order, that travelers' due process rights were not being respected by giving detailed notice of restrictions for those with current or pending visas. Kelly said the goal was "to make sure that there's no one, in a sense, caught in the system of moving from overseas to our airports, which happened on the first release" of the order.
Trump's original order, issued a week into his presidency, barred citizens of seven Muslim-majority countries -- Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen -- from entering the US for 90 days, all refugees for 120 days and refugees from Syria indefinitely.
"The new order is going to be very much tailored to what I consider to be a very bad decision," Trump said during his White House news conference Thursday, referring to the courts' blocking of its implementation.
Asked for comment on the possible order, White House spokesman Michael Short said, "The only thing that matters is what the President signs. When we have something final to announce on that front we will let you know."
Scope of new order
A source familiar with the process said that the new order was still being drafted over the weekend. The source said that it was also likely to address religious discrimination issues by modifying or removing one section of the original order. That section, 5 (b), said that the Secretary of Homeland Security, "is further directed to make changes, to the extent permitted by law, to prioritize 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."
One sticking point remained whether existing non-immigrant visas would be revoked. A source familiar with the discussions said the Justice Department preferred to not revoke existing non-immigrant visas, while the White House and Department of Homeland Security were considering doing so.
"[I]f they're on an airplane and inbound, they will be allowed to enter the country," Kelly said. "And this, again, is just a pause until we look at a number of countries -- seven in particular -- and look at their vetting processes, how reliable they are -- and I will tell you right now they're not very reliable."
Another area of concern for critics remains special immigrant visas, a class of visas given to Afghans and Iraqis who helped the US military in the wars there, including interpreters.
Rep. Adam Kinzinger, a Republican from Illinois who served in Iraq and Afghanistan, told CNN's "New Day" on Monday that he fears that the new order would ban even those individuals from entering if they're not green card holders.
"I hope they're not on the new executive order, but it sounds like they may be," Kinzinger said.
Still up in the air, over the weekend, was a different section that suspended the entry of nationals of Syria as refugees. According to the source, there are opposing views on whether to exclude or modify the provision.
Challengers to the original executive order are anxiously awaiting the new one.
Immigration attorney David Leopold argued that the very fact that a new order is being drafted "is a clear admission by the Trump administration that the President directly violated immigration law and the Constitution when he ordered a sweeping ban on Muslims and Syrian refugees in late January."
Lee Gelernt, an attorney with the ACLU who is challenging the order in New York courts, said he expects the new order will exempt green card holders, but warned that he expected other aspects of the new order to present legal problems. "If the only real change is to exempt green card holders, than the legal challenges will continue full force," he said.
"This debate is critical both legally and policy-wise," said Leon Fresco, an immigration attorney and former Obama administration Justice official. "Obviously, it is important not to run afoul of existing court orders precluding cancellation of visas. But even more importantly, it sends a disconcerting signal to all potential foreign visitors when the US cancels visas for entire groups on short notice rather than canceling visas due to the actions of individual visa holders."
One of lawmakers' major concerns with the initial rollout of the order was that they were not consulted. When Kelly testified in front of the House Homeland Security Committee, he faced repeated requests for assurances that members of Congress would be considered when drafting further executive orders.
"You have an extreme vetting proposal that didn't get the vetting it should have had," Republican Sen. Rob Portman of Ohio told CNN's Jake Tapper on Sunday's "State of the Union" last month. "As the result, in the implementation, we've seen some problems."
But despite a pledge from the White House to consult legislators in crafting policies, multiple Hill sources said they remained out of the loop on the order as of Monday morning.