US Immigration Policy under the Obama Administration

In December 2015, Congress passed the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015.

The effect of the Act (and its subsequent amendments) were twofold. Firstly, it prevented dual citizens of Visa Waiver Countries and Iran, Iraq, Sudan and Syria from travelling to the US under the Visa Waiver Program. Secondly, it prevented foreign nationals of any nationality from travelling to the US under the Visa Waiver Program if they had traveled to one of seven named countries since March 1 2011. The seven named countries were Iran, Iraq, Sudan, Syria, Libya, Somalia and Yemen.

Individuals ineligible to travel to the US under the Visa Waiver Program by virtue of the aforementioned Act were required to apply for a B1/B2 tourism and business visa to visit the US, thereby triggering a rigorous two-stage vetting process.

First, applicants were required to complete a comprehensive online application form, comprising of over 120 questions. The application form contained questions covering every aspect of an individuals’ life, from the name of their work supervisor to their parents’ dates of birth and even details of ex-spouses. Applicants were required to disclose, inter alia, details of any criminal convictions, any information pertaining to exposure to firearms, explosives, nuclear, biological or chemical training, any involvement in human trafficking, genocide or terrorist activity, any history of prostitution, any involvement in the coercive transplantation of human tissue and even any involvement in espionage. Applicants were required to electronically sign a declaration to confirm that all of the information provided was correct and accurate.

Second, applicants were required to attend an interview at the local US embassy to determine whether the visa application should be approved. At interview, applicants were required to produce a variety of documents to prove the purpose of their visit to the US, their ability to fund the trip and their ties to their home country. Highly trained Immigration Officers had the opportunity to forensically scrutinize the credibility of an individuals’ application, in order to determine if they posed a risk to national security.

At all times, the burden was on the applicant to satisfy Immigration Officers that they were fit for entry to the US. If Immigration Officers had any concerns or reservations whatsoever, they were at liberty to simply decline the application. It was a highly effective and efficient system, which afforded honest, law-abiding citizens the opportunity to prove their fitness for entry to the US, while equally providing a robust and stringent safeguard against the threat posed by terrorism.

US Immigration Policy under the Trump Administration

President Trump’s current immigration policy represents a radical departure from the “firm but fair” approach adopted by the Obama administration.

President Trump’s Executive Order purported to ban citizens of Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen from entering the US for a period 90 days, to enable the Trump administration to adopt a new “extreme vetting” procedure. At the time of writing, execution of the Executive Order was subject to a nationwide Temporary Restraining Order. We do not know what the “extreme vetting” procedures will entail.

Under the Executive Order, nationals of the countries in question were not given the opportunity to prove their fitness to enter the US; they were simply deemed inadmissible by virtue of their nationality. The Executive Order was arbitrary in nature and discriminatory in effect. Critics have contended that the Executive Order breaches the Equal Protection and Due Process Clauses of the US Constitution and, indeed, several legal challenges are currently underway.

Conclusion

In our view, the safeguards introduced under the Obama administration struck the right balance between safeguarding national security and upholding the core democratic principles of Equal Protection and Due Process enshrined in the US Constitution. We are pleased the Ninth Circuit Court of Appeals has upheld suspension of the Executive Order and hope that the Executive Order is eventually replaced with a fair and just immigration policy.

At Davies Legal, we are able to provide comprehensive legal advice and representation to anyone who is unsure of their legal position following President Trump’s Executive Order. We pride ourselves on providing a timely response to your queries. Call now for further information on our comprehensive range of visa application services.

Published: 14th February 2017

Filed under: Articles