By Peregrine

On 5 December 2017, the US Supreme Court has allowed the Trump administration’s latest travel ban to take full effect while the case is pending litigation on the merits to determine whether all or part of the ban is unconstitutional and should be permanently enjoined.

Background

On 24 September 2017, just as the previous travel ban was due to expire, the US President issued a Proclamation indefinitely imposing various new restrictions on immigrant and non-immigrant entry for certain nationals of five of the countries affected by the previous travel ban (Iran, Libya, Somalia, Syria and Yemen) and three additional non-Muslim majority countries (Chad, North Korea and Venezuela). See also this Department of Homeland Security fact sheet. Note that travel restrictions were removed from Sudanese nationals. The latest travel restrictions do not affect refugees.

Subsequently, lower courts issued injunctions preventing the new version of the ban from going into full effect, and on November 13th, the Ninth Circuit Court of Appeals issued an order that partially upheld a lower’ court’s injunction.

The Ninth Circuit decision had allowed the travel ban to be enforced, except with respect to those who have “a bona fide relationship with a person or entity in the United States.”

Who is affected?

The proclamation can now be enforced as indicated in the chart below and no exception is provided for those with “a bona fide relationship with a person or entity in the United States”.

The restrictions are in place indefinitely, though the proclamation provides that countries may be removed from the list upon meeting certain criteria listed in the proclamation with respect to “identity-management information”, “national security and public-safety information”, and “national security and public-safety risk assessment.”

The proclamation generally applies to foreign nationals referenced below who are outside the United States on the effective date and do not have a valid visa on the effective date.

Nationality Restrictions
Chad Non-immigrant B-1, B-2, or B-1/B-2 visas and immigrant visas are suspended.
Iran Immigrant and non-immigrant visas are suspended, except for applicants for and holders of valid student (F and M) and exchange visitor (J) visas.  Individuals applying for or possessing these visas will be subject to enhanced screening and vetting.
Libya Non-immigrant B-1, B-2, or B-1/B-2 visas and immigrant visas are suspended.
North Korea All non-immigrant and immigrant visas are suspended.
Somalia All immigrant visas are suspended.  Applicants for non-immigrant visas will be subject to enhanced screening and vetting.
Syria All non-immigrant and immigrant visas are suspended.
Venezuela Non-immigrant (B-1, B-2, and B-1/B-2) visas for Venezuelan governmental officials involved in screening and vetting procedures for entry into Venezuela and their immediate family members are suspended.  Venezuelan visa applicants and current visa holders will be subject to enhanced screening and vetting
Yemen Non-immigrant B-1, B-2, or B-1/B-2 visas and immigrant visas are suspended.

Exceptions

The new order does not apply to:

  • Nationals of the applicable countries who are already in the US;
  • Valid visa holders;
  • Lawful permanent residents (LPR); or
  • Dual nationals travelling under the passport of the non-designated country.

Waivers

Those who are impacted and do not fall under one of the exceptions may apply for a waiver.  The proclamation directs the Secretaries of State and Homeland Security to “coordinate to adopt guidance addressing the circumstances in which waivers may be appropriate for foreign nationals seeking entry as immigrants or nonimmigrants.”

Waivers may be granted “only if a foreign national demonstrates to the consular officer’s or CBP official’s satisfaction” each of the following elements: 1. Denying entry would cause the foreign national undue hardship; 2. Entry would not pose a threat to the national security or public safety of the United States; and 3. Entry would be in the national interest. Individuals who secure a waiver must still demonstrate that they meet all other requirements of the requested visa category.

Action Items

  • Employees of nationals of the eight affected countries who may be affected by these travel restrictions are advised to consult with an immigration attorney.