Trump's Newest Travel Restrictions: Summary and Analysis

Tuesday, September 26, 2017 - 1:00pm

Summary of the September 24, 2017 Presidential Proclamation

Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public Safety Threats

Signed by the President on September 24, 2017

(update current as of September 25, 2017)

President Trump signed a Presidential Proclamation (“Proclamation” or “PP”) on Sunday, September 24, 2017, with new travel restrictions prohibiting visa issuance and entry to the United States of nationals from named or designated countries. This is the latest version of the President’s efforts to establish information-sharing and identity management protocols with foreign countries which will serve to “protect the security and interests of the United States” and to restrict entry to the U.S. of nationals from those countries which fail to meet new baseline standards of cooperation. The Proclamation’s restrictions have immediate effect for certain countries, and a later effective date of October 18, 2017 for others.

The Proclamation is based upon the U.S. government’s worldwide review of how other countries were and are sharing information and assisting the U.S. government in identifying potential security threats to the United States, as last outlined in the President’s Executive Order of March 6, 2017. The U.S. government had established “global requirements” for information sharing and developed criteria by which to judge the efforts and cooperation of foreign countries. In effect, the U.S. Department of Homeland Security (DHS) has developed a “baseline” of the kinds of information needed from other countries to support the U.S. government’s ability to confirm the identity of visa applicants and to assess whether individuals pose a “security or public-safety threat.” The September 24th Proclamation explains that following this review, some countries remain “deficient” and thus warrant these latest restrictions on the issuance of immigrant and nonimmigrant visas and entry to the United States of their nationals to the United States. With certain differences in scope and rationale, the countries affected by this travel restriction are Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen and Somalia.

While Iraq was found to be deficient with regard to the new “baseline,” the Proclamation explains that Iraq will not be subject to these restrictions due to the ongoing close cooperation between the U.S. government and that of Iraq, the United States’ strong diplomatic and military presence in Iraq and Iraq’s “commitment to combatting … ISIS.” Instead, Iraqi nationals will be subject to “additional scrutiny” when applying for visas.

Notably, Sudan – previously named in earlier bans – has been removed from the list of designated countries.

The administration had come under much criticism for its original “travel ban” of January 27, 2017, and even the later revision of March 6, 2017 was referred to as a Muslim ban. The administration appears to be addressing such criticism and also taking heed of the U.S. Supreme Court’s decision of [DATE] concerning the March version of the ban, by taking pains to demonstrate a “more tailored approach” on the entry of nonimmigrants. The Proclamation’s Section 2 outlines the reasons for each country’s inclusion, with country-by-country discussion of the deficiencies in its cooperation with the U.S. government’s efforts to better screen and vet visa applicants.

Key Restrictions on Designated Countries

The U.S. Department of State (DOS) has posted a comprehensive chart which outlines the various restrictions on a country-by-country basis: https://travel.state.gov/content/travel/en/news/important-announcement.html

The designated countries are impacted as follows:

Chad

  • No B-1, B-2 or B-1/B-2 visas
  • No immigrant or diversity visas

Iran

  • No nonimmigrant visas, except: F, M, and J student visas
  • No immigrant or diversity visas

Libya

  • No B-1, B-2, and B-1/B-2 visas
  • No immigrant or diversity visas

North Korea

  • No nonimmigrant visas
  • No immigrant or diversity visas

Syria

  • No nonimmigrant visas
  • No immigrant or diversity visas

Venezuela

  • No B-1, B-2, or B-1/B-2 visas for officials from the following Venezuelan government agencies : Ministry of Interior, Justice, and Peace; the Administrative Service of Identification, Migration, and Immigration, the Corps of Scientific Investigations, Judicial and Criminal; the Bolivarian Intelligence Service; and the People’s Power Ministry of Foreign Affairs, and their immediate family members
  • No restrictions on immigrant visas.

Yemen

  • No B-1, B-2, and B-1/B-2 visas
  • No immigrant or diversity visas

Somalia

  • No nonimmigrant visas
  • No immigrant or diversity visas

 

Two Implementation Phases

The Proclamation has two effective or start dates for when its restrictions will begin. There is an immediate phase as of September 24th, and a second phase to take effect starting Wednesday, October 18th at midnight.

Phase I: starting September 24 until midnight October 18

Nationals of Iran, Libya, Syria, Yemen and Somalia will continue to be under the earlier travel ban, except for those individuals who can establish a “close family” connection to the United States or a “bona fide relationship with a U.S. entity.” Close family includes parent, parent-in-law, spouse, fiancé, child, adult son or daughter, son-in-law, daughter-in-law, sibling, brother-in-law, sister-in-law, grandparent, grandchild, aunt, uncle, niece, nephew, and first cousin. For any such relationship, “half” or “step” status is included (e.g., step-sister).

To establish a bona fide relationship with a U.S. entity, the relationship must be “formal, documented, or formed in the ordinary course” (rather than formed just for purposes of avoiding the travel restriction).

And, all such individuals – even without a relationship with close family or a U.S. entity – may still seek a discretionary waiver of the travel restriction if they can demonstrate to a consular or Customs and Border Protection (CBP) officer that: (1) denying entry would cause them undue hardship, (2) entry would not pose a threat to the national security or public safety of the United Sates; and (3) entry would be in the national interest. These waiver factors were discussed in previous postings [LINK]

Phase II: starting midnight on October 18, 2017

The travel restrictions are expanded to include Chad, North Korea and Venezuela. The complete listing of designated countries as of October 18, 2017 will be; Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen and Somalia.  These individuals will be able to seek discretionary waivers of the travel restriction if they can present evidence of fulfillment of the three factors described above. As of October 18th, however, the exception for those with bona fide relationships to a U.S. family member or to a U.S. entity will no longer be available. Thus, the only way for nationals of this expanded list of countries to seek a visa will be to apply for a waiver.

Exceptions to the Travel Restrictions

As before, there are certain exceptions to these restrictions on visa issuance and entry to the United States. The September 24th Proclamation clearly states that it applies to those who are (i) outside the United States as of applicable effective date (i.e., either September 24 or October 18, depending on the country), (ii) do not have valid visas on the applicable effective date, and (3) do not qualify for a visa or other travel document under the special provisions made for those individuals whose visas were previously revoked or cancelled at the time of the January 27, 2017 Executive Order.

For those nationals of designated countries, the short list of exceptions is:

  • Any lawful permanent resident (LPR) (i.e., green card holder);
  • Anyone admitted to or paroled into the United States on or after the applicable effective date;
  • Anyone who has a document other than a visa – e.g., a transportation letter, an appropriate  boarding foil, or an advance parole document – that is valid on the applicable effective date;
  • Dual nationals who are traveling on the passport of a non-designated country;
  • Those traveling on diplomatic or diplomatic-type visas; NATO visas; C-2 visas for travel to the United Nations, or G-1, G-2, G-3 or G-4 visas; or
  • Those who have been granted asylum, refugee status or withholding of removal, advance parole or protection under the Convention Against Torture.

“Case by Case” Waivers of the Travel Restriction

For those who are subject to the travel restrictions, it is still possible to seek waivers that would allow them to obtain visas and entry to the United States. While the DOS and DHS must coordinate on the exact process by which one can apply for the waiver, the Proclamation does set out the three part “test” for establishing eligibility for this discretionary benefit. The foreign national must convince the consular or CBP officer that:

  1. denying his/her entry would cause “undue hardship”;
  2. the individual’s entry would not pose a threat to the national security or public safety of the United States; and,
  3. the individual’s entry would be in the “national interest.”

Once granted, the waiver would be valid for that first entry and for any subsequent entry on that same visa. For foreign nationals who only receive a single entry visa, this will mean having to apply for a waiver each and every time they travel outside the United States and seek to return. The Proclamation repeats some of the earlier examples of situations which might allow for the granting of a waiver, ranging from family unification to seeking medical care, to permanent residents of Canada who are applying for visas at U.S. consulates in Canada. The list of examples is not exhaustive and might very well include other situations where hardship and national interest are present and there is no evidence of any threat to the national security.

Other Considerations

Does the ban apply to someone who has just traveled to a designated country?

No. Unless the individual is a national of a designated country, the ban does not apply solely because he or she has visited one or more of the designated countries. Travel to one of these countries however may increase the likelihood of being questioned by CBP about the nature of the visit – why the person was in the country, for how long, etc., as already provided for in the December 2015 Visa Waiver Program Improvement and Terrorist Travel Prevention Act . Such individuals may be placed in secondary inspection on arrival at a U.S. airport so that CBP may question them about the purpose and nature of such travel.

Should affected individuals travel outside the United States?

Individuals who are affected by this ban must understand that if they depart the United States, they will need to claim a close relationship to a family member or U.S. entity (during Phase I) or seek a waiver (as outlined above) during/after Phase II. Anyone impacted by the ban should consult with an immigration attorney before leaving the United States.

What about individuals who are outside the United States and want to return?

Individuals who are outside the United States and who are impacted by the travel ban should consult with an immigration attorney to see under what circumstances they may be able to return. This may depend on whether they have a valid, unexpired visa; whether they have close ties to U.S. family or institutions; and whether they may be able to make the case for a waiver.

How will this Proclamation affect applications pending before the US Citizenship and Immigration Services (USCIS)?

The Proclamation does not appear to prohibit the receipt or review of applications or petitions for immigration benefits by DHS/USCIS. Indeed, it specifically states that its restrictions apply to those who are “outside” the United States as of the applicable effective date. Therefore, this should mean that USCIS will continue to review and adjudicate applications and petitions for individuals of the designated countries, for example, nonimmigrant petitions including extensions; employment authorization document (EAD/work permit) applications, adjustment of status applications, asylum applications, etc.

Will the restrictions be extended to include other countries?

Countries may be added to the designated countries list or removed, depending on whether and how the country meets the DHS baseline as to its plans and ability to provide information needed for the U.S. government to screen and vet visa applicants. The Proclamation requires DHS to submit regular reports every 180 days with recommendations on the inclusion of new countries or removal of others.