Washington DC, January 22, 2025: For our second instalment in our analysis of President Trump’s new Executive Orders on immigration, we focus on the new Executive Order on travel bans and extreme vetting of immigrants applying for admission to the U.S.
The Executive Order was adopted on the first day of President Trump’s new term, and is programmed to take effect 60 days later.
The stated purpose of the Executive Order is to protect the U.S. from security threats, including terrorism, posed by immigrants and visitors to the U.S.
In practice, the Executive Order creates two broad lines of US government action: (1) the possibility of travel bans of immigrants and visitors from certain countries designated by the U.S. government, and (2) extreme vetting of immigrants and visitors from all countries.
Travel Bans 2025
The Trump administration’s goal of banning travel from certain countries is not new. It was already implemented in the first Trump administration in the form of a travel ban on people from certain predominantly Muslim countries. After the first 2 iterations of those travel bans were declared unconstitutional by U.S. courts, version 3.0 was upheld the U.S. Supreme Court in 2018. The final travel ban was held to be constitutional because it applied to both predominantly Muslim countries (Iran, Syria, Yemen, Libya and Somalia) as well as North Korea and government officials from Venezuela, and focused on national security threats. That decision set the foundations for broad presidential power to determine travel bans for national security grounds.
The new Executive Order, therefore, is likely to follow the same pattern as the 2018 travel ban 3.0. It will likely again target countries that are openly hostile to the United States, including predominantly Muslim countries such as Iran, Yemen and Libya, as well as countries such as North Korea and Venezuela. The potential list of targeted countries, and the details of such travel limitations, have not yet been disclosed.
Extreme Vetting
Extreme vetting procedures were also in effect during the first Trump administration, and are now making a second appearance in the visa landscape.
Extreme vetting refers to 2 different requirements:
- First, extreme vetting seeks to require all countries to provide minimum background information on persons seeking to visit, work or obtain permanent residency in the U.S. Within 60 days, the Trump administration will identify nations with deficient vetting procedures, and those countries may face a complete or partial travel ban under INA 212(f).
- Second, extreme vetting seeks to engage in additional and detailed scrutiny of new visa petitions, already approved visa petitions (through re-opening of the case) and visa renewals.
Extreme vetting has several implications for visa processing. For example, it may slow down visa processing due to background checks on employers and applicants. Moreover, it may lead to visa refusals for renewal of visitor visas, student visas and temporary work visas in all visa programs. Finally, it is likely that USCIS will launch new initiatives to de-naturalize U.S. citizens based on re-opening previously approved naturalization applications.
Conclusion
The potential for a travel ban – whether partial or total – on certain countries will likely be litigated through the U.S. court system. The likelihood of an injunction suspending implementation of a travel ban, however, is not strong because U.S. Supreme Court precedent grants the President broad powers to determine admission to the U.S. based on national security threats. Thus, it is likely that a travel ban will be held valid and will impact immigrants and visitors.
Extreme vetting will generally tend to slow down visa processing. Additionally, extreme vetting will likely lead USCIS to suspend or eliminate its deference policy. The deference policy encourages predictability in visa processing and administrative efficiency. Extreme vetting, however, seeks to actively challenge prior visa approvals by analyzing all applications under new scrutiny requirements – regardless of whether USCIS had previously approved a visa petition filed by the same employer for the same employee in the same visa category. This practice proved quite pernicious for temporary workers during the first Trump administration. For example, USCIS raised questions about previously approved degree equivalencies, job descriptions and prevailing wage approvals. Employers and employees should anticipate requests for evidence and longer processing due to extreme vetting and plan ahead.