Whether an applicant can get a waiver is largely in the hands of officers at US embassies
The new executive order gives discretion to State Department and DHS personnel
President Donald Trump’s updated executive order on travel appears to offer more flexibility to would-be travelers than its January predecessor, spelling out several exemptions to the ban on nationals from six designated countries, and giving others wiggle room to apply for waivers.
The original order, signed days after Trump took office and subsequently blocked by a federal court, created widespread confusion for travelers, border agents, diplomats, airlines, and foreign governments – an experience the administration hoped to avoid with this new, much longer edition.
In version 2.0, the parameters of the ban are more clearly outlined. They spell out which categories of travelers are affected, and outline a broader scope of exemptions for individuals seeking to bypass the restrictions.
Per the text of the order, waivers can be issued on “a case-by-case basis” by US consular officers at diplomatic posts, and by certain Customs and Border Protection officials at ports of entry.
Unlike January’s order, US embassies are not planning to cancel appointments for people seeking US visas, and will “review each case carefully to ensure it is processed appropriately under the (executive order) and in compliance with any court orders,” a State Department official told CNN.
The executive order gives discretion to State Department and Department of Homeland Security personnel, and provides nine specific examples of circumstances when a waiver might be issued.
These include an applicant “needing urgent medical care,” coming into the country for “significant business or professional obligations,” or planning to “visit or reside with a close family member” when “the denial of entry during the suspension period would cause undue hardship.”
Ultimately, whether an applicant can get a waiver is largely in the hands of consular officers at US embassies abroad.
These career diplomats, who adjudicate visa issues, now explicitly have the authority to issue waivers to the president’s ban.
Monday’s order also clearly lists six categories of people who are not subject to the ban, including US lawful permanent residents, dual citizens using a passport from a non-designated country, and anyone who already has a valid visa.
Last time around, these exemptions were not plainly stated in the text of the order, and the administration was forced to clarify the scope of the ban only after complaints from immigration attorneys and foreign governments.
What happens to refugees?
For refugees, who are subject to a 120-day ban, the exemptions are less clear.
The order states gives the Secretary of State and Secretary of Homeland Security the responsibility to jointly determine cases where admission would be “in the national interest” and wouldn’t “pose a threat to the security or welfare of the United States,” such as in cases where “the individual’s entry would enable the United States to conform its conduct to a preexisting international agreement of agreements, or the denial of entry would cause undue hardship.”
The language of this provision appears to have been designed, at least in part, to allow the Trump administration to honor an agreement with Australia, whereby the US has pledged to take 1,250 refugees currently being held in offshore detention centers on the Pacific Island nation of Nauru and Papua New Guinea’s Manus Island.
But while Monday’s order offers a level of clarity and detail the first version didn’t, the underlying policies are largely the same, drawing criticism from Democrats, activists, and faith-based groups.
In a statement Monday, Tim Breene, CEO of the evangelical relief organization World Relief, said the issuance of the new order “acknowledges that there were significant problems with the first executive order that caught up green card holders and others as they tried to enter to the United States.”
“However,” Breene said, “this new executive order does not solve the root problems with the initial order – the cutting of refugee admissions by 55% and the inability for some of the world’s most vulnerable refugees to come to the United States, it is more of the same.”