Wednesday, September 27, 2017

Recent Update to the Travel Ban

By Angela Lopez

On September 24, 2017 the Trump Administration issued its third Travel Ban Executive Order.  According to the Administration, several countries are deficient with respect to information sharing and identity-management protocols by foreign governments, and/or have a “significant terrorist presence” within their countries. Therefore, the administration issued a new Travel Ban imposing restrictions on the entry into the U.S. by nationals from these “noncompliant” countries.

Background:

In January 27, 2017, President Trump issued the first Travel Ban restricting travel to citizens of seven countries — Iraq, Iran, Sudan, Somalia, Libya, Yemen and Syria - as well as all refugees across the globe.   This order was blocked in court and President Trump issued a revised order in March 2017 removing Iraq from the list and outlining the reasons for the travel restrictions to the six remaining countries and all refugees.

The second order was also blocked in court, but the Supreme Court in June allowed it to go into effect stipulating that the administration “could not block from entering the country those with a bona fide connection to the United States, such as family members or those with firm offers of employment.”   The restrictions were to last 90 days on citizens of the six countries and 120 days on refugees. The refugee restriction is set to expire on October 24, 2017. It is not clear what impact the new restrictions might have on that deadline.

The Supreme Court has scheduled arguments for October 10 on whether the Travel Ban is legal. On September 24, the Justice Department stated that the new order could affect how the court handles the case — lawyers for the administration filed a letter asking for new court briefs to address issues raised by the new rules.

The new (third) Travel Ban:

The new order added Chad, North Korea, and Venezuela to the list and excluded Sudan.  However, the new restrictions seemed to be tailored to each country’s specific deficiencies, in terms of compliance with the administration requirements (information sharing and identity-management protocols by foreign governments, and/or having a “significant terrorist presence” within their country) for countries to stay off the Travel Ban list.

Specifically, the new Travel Ban imposes the following restrictions:

  1. Somalia – The entry of immigrants is suspended. Nonimmigrants are subject to additional scrutiny to determine if applicants are security or safety threats.
  2. Libya – The entry of immigrants is suspended. The entry of B-1 business visitors, B-2 tourists and B-1/B-2 nonimmigrants is suspended.
  3. Chad – The entry of immigrants(*1) is suspended. The entry of B-1 business visitors, B-2 tourists and B-1/B-2 nonimmigrants(*2) is suspended.
  4. Iran – The entry of immigrants and all nonimmigrants except F and M students and J-1 exchange visitors is suspended. F, M and J nonimmigrant applicants will be subject to enhanced screening and vetting requirements.
  5. North Korea – The entry of all immigrants and nonimmigrants is suspended.
  6. Syria – The entry of all immigrants and nonimmigrants is suspended.
  7. Venezuela – The entry of officials of government agencies involved in screening and vetting procedures – including the Ministry of the Popular Power for Interior, Justice and Peace; the Administrative Service of Identification, Migration and Immigration; the Scientific, Penal and Criminal Investigation Service Corps; the Bolivarian National Intelligence Service; and the Ministry of the Popular Power for Foreign Relations – and their immediate family members, as nonimmigrants on B-1, B-2 and B-1/B-2 visas is suspended. Nationals of Venezuela who are visa holders should be subject to appropriate additional measure to ensure traveler information remains current.
  8. Yemen – The entry of immigrants is suspended. The entry of B-1 business visitors, B-2 tourists and B-1/B-2 nonimmigrants is suspended.


These restrictions shall not apply to the following people:

  • Any lawful permanent residents of the US (this directly contradicts descriptions in various country outlines);
  • Any foreign national who is admitted to or paroled into the US on or after the applicable effective date;
  • Any foreign national who has a document other than a visa – such as a transportation letter or advance parole document – valid on the effective date;
  • Any dual national of a country designated under section 2 when the individual is traveling on a passport issued by a non-designated country;
  • Any foreign national traveling on a diplomatic or diplomatic-type visa, NATO visa, C-2 via for travel to the UN, or G-2, G-2, G-3, or G-4 visa; or
  • Any foreign national who has been granted asylum to the US; any refugee who has already been admitted to the US; or any individual who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture.

The new Travel Ban applies to people from the designated countries (eight total) who:

  • Are outside the US later than 3:30 eastern time on September 24, 2017;
  • Do not have a valid visa on that date; and
  • Do not qualify for a visa under Section 6(d) of the Executive Order.


Consular officers or Custom Border Patrol (CBP) Agents may, in their discretion, grant waivers and allow entry into the U.S. on a case-by-case basis if:

  • Denying entry would cause undue hardship;
  • Entry would not pose a threat to the national security or public safety of the US; and
  • Entry would be in the national interest.

A waiver will allow for issuance of a visa, but will leave unchanged all other requirements for entry or admission.

The new Travel Ban enters into effect on September 24, 2017 for people who were subject to entry restrictions from the January Travel Ban and who lack a credible claim of a “bona fide” relationship with a person or entity in the US, and on October 18, 2017 for nationals of Iran, Libya, Syria, Yemen and Somalia who have a credible claim of a "bona fide” relationship with a person or entity in the US and Chad, North Korea and Venezuela.

We are sure this is will not be the last of the Travel Ban executive orders saga, and anticipate litigation to continue  for many more months (hopefully not years) to come.
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  1. Immigrant - Foreign national who want to live permanently in the United States by becoming a lawful permanent resident.
  2. Nonimmigrant - Foreign national who wishes to be in the U.S. on a temporary visa (e.g. tourism, medical treatment, business, temporary work or study)


 

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