On Sunday, September 24, 2017, the White House issued a proclamation (the “P.P.” or “Presidential Proclamation”) titled, Proclamation on Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats,” laying out travel restrictions for eight countries, including five that were subject to the previous travel ban, which we wrote about last on September 12th. The last version of the travel ban issued on March 16, 2017, which faced delays in the courts, was partially reinstated by the Supreme Court on June 26th. The Supreme Court’s reinstated version of the March 16th travel ban expired on September 24th, 90 days after the reinstatement, per the original ban’s expected lifespan. The new P.P. provides general information as to the justification and process behind it, no doubt to support its constitutionality in the anticipated future legal challenges.
The Presidential Proclamation creates travel restrictions for nationals of Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen, and Somalia. Under this proclamation, some countries will face more severe restrictions than others. This chart from the State Department clearly outlines the various travel restrictions as outlined in the Presidential Proclamation. Of particular note:
- North Korean and Syrian nationals will see the harshest measures, as all immigrants and nonimmigrants will be blocked from entry.
- For Somalia, the chart indicates “No nonimmigrant visas,” whereas the Presidential Proclamation says “visa adjudications for nationals of Somalia and decisions regarding their entry as nonimmigrants should be subject to additional scrutiny.”“ Still, no individuals with immigrant or diversity visas will be allowed entry.
- Only Iranian nationals with F and M student visas or J exchange visitor visas will be allowed entry, and no individuals with immigrant or diversity visas can gain entry.
- Nationals from Chad, Libya, and Yemen who have immigrant or diversity visas or nonimmigrant B-1, B-2, and B-1/B-2 visas will be blocked from entry.
- Certain officials with B-1, B-2, and B-1/B-2 visas from Venezuela and their immediate family members will also be barred entry.
The travel restrictions from the P.P. will take effect at two different times: For foreign nationals who were subject to the last travel ban, (nationals from Syria, Somalia, Iran, Libya, and Yemen) without a credible claim of a bona fide relationship with a person or entity in the U.S., the restrictions took effect at 3:30pm EDT on Sunday, September 24, 2017. Starting Wednesday, October 18, 2017 at 12:01am EDT, the other restrictions will go into effect for the above-referenced countries and for the added countries, Chad, North Korea, and Venezuela. With regard to the October 18th effective date, the P.P. makes no exception for anyone from any of these countries who claim a bona fide relationship with a close U.S. family member or with a U.S. entity.
Per the Presidential Proclamation, the suspension of entry does not apply to the following individuals:
- lawful permanent residents regardless of their country of origin;
- any foreign national who is admitted to or paroled into the United States;
- any foreign national who has a travel document other than a visa, such as an advance parole document, that allows travel to the United States to seek entry or admission;
- any dual national when the individual is traveling on a passport issued by a non-designated country;
- any foreign national traveling on a diplomatic (A-1 or A-2) or diplomatic-type visa (any classification), North Atlantic Treaty Organization (NATO-1 – 6) visa, C-2 visa for travel to the United Nations, or G-2, G-2, G-3, or G-4 visa, except for certain Venezuelan government officials as listed above; or
- any foreign national who has been granted asylum; any refugee who has already been admitted; or any individual who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture (CAT).
The State Department has indicated that it will not cancel previously scheduled visa application appointments. As with the prior version of the travel ban, visa applicants may request a waiver of the ban’s applicability to them, based on one of the articulated waiver grounds. A waiver may be granted only if a foreign national demonstrates to the consular officer or CBP official’s that (1) denying entry would cause 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. During a visa interview, a consular officer will make a determination about whether an applicant who is otherwise eligible for a visa is exempt from the Presidential Proclamation or eligible for a waiver under it. Each individual visa applicant must independently qualify for an exception or waiver.
Case-by-case waivers may not be granted categorically, but the P.P. states that a waiver may be appropriate in individual circumstances such as the following:
- where a foreign national has previously been admitted to the United States, is outside the United States on the applicable effective date, and seeks to reenter to resume that activity and the denial of reentry would impair that activity;
- the foreign national has previously established significant contacts with the United States but is outside the country on the effective date for a lawful activity;
- the foreign national seeks to enter the country for significant business or professional obligations and the denial of entry would impair those obligations;
- the foreign national seeks to enter the United States to visit or reside with a close family member (e.g. a spouse, child, or parent) who has been lawfully admitted and the denial of entry would cause undue hardship;
- the foreign national is an infant, young child, or adoptee, and individual needing urgent medical care, or someone whose entry is otherwise justified by the special circumstances of the case;
- the foreign national has been employed by or on behalf of the U.S. government or is an eligible department of such an employee, and can document that the employee has provided faithful and valuable service to the Government;
- the foreign national is traveling for purposes related to an international organization designated under the International Organizations Immunities Act (IOIA), traveling for purposes of conducting meetings or business with theU.S. government, or traveling to conduct business on behalf of an international organization not designed under the IOIA;
- the foreign national is a Canadian permanent resident who applies for a visa at a location within Canada;
- the foreign national is traveling as a U.S. government-sponsored exchange visitor; or
- the foreign national is traveling to the United States, at the request of a U.S. government department or agency, for legitimate law enforcement, foreign policy, or national security purposes.
The restrictions laid out in the Presidential Proclamation do not have an end date. The Proclamation states that if the secretary of DHS finds that a nation meets the baseline standards for information sharing about identity management, national security, and public safety, and has established an adequate plan to provide the requested information, or that any of the restrictions are not necessary anymore, DHS can recommend to the President the removal or modification of the restrictions. By the same token, it is possible that new countries can be added to future travel bans.
The Supreme Court canceled oral arguments scheduled for October 10th concerning the previous travel ban. The Court asked the lawyers in the case to submit briefs by October 5th discussing the effect of the Presidential Proclamation, and whether or to what extent it may render the case moot.
This issue continues to evolve and this newest travel ban will certainly face legal challenges. We will continue to provide updates following breaking developments.