On Sep 25 2017 by William A. Stock

CLIENT ALERT: President Trump Issues Proclamation of Entry Restrictions as Continuation of Travel Ban

UPDATE: 12/5/17

NEW CLIENT ALERT HERE: On Monday, December 4, the Supreme Court lifted a temporary hold on the most recent version (September 24, 2017) of President Trump’s “travel ban” Executive Orders.

President Trump Issues Proclamation of Entry Restrictions as Continuation of Travel Ban

Late Sunday evening, President Trump signed a new proclamation modifying his March “travel ban” Executive Order, EO 17380. That Executive Order, titled “Protecting the Nation from Foreign Terrorist Entry Into the United States,” contained a 90-day suspension of entry, with certain exceptions, for nationals of six Muslim-majority countries (Iran, Syria, Sudan, Somalia, Libya and Yemen). The Supreme Court allowed EO 17380 to go into effect, and it was implemented on June 24, 2017. Its 90 day duration ended Sunday, September 24.  

The Proclamation suspends entry for some new countries; removes one country’s entry suspension; and has no internal expiration date, unlike the prior Executive Orders. Here is what our clients need to know about the Proclamation suspending some entries from eight countries.

The Proclamation is more targeted that prior orders, in that it does not suspend all entry by nationals of all targeted country. A list of the new restrictions, with each affected country, is below. The Proclamation continues the “waiver” or exception mechanism created by EO 17380 for each targeted country: nationals of those countries may apply for a visa and be issued a visa by showing “undue hardship” and that the individual is not a national security risk. Under the Proclamation, as under EO 17380, new visa issuance is generally to be considered appropriate where the new visa is to allow continued work or study in the United States; where the proposed immigrant/nonimmigrant has significant personal or professional contacts in the United States; where the proposed immigrant/nonimmigrant has a “close relative” (listing spouse, parent and child as examples); or where the proposed immigrant is an orphan being adopted by US citizens.

In addition, this new order continues to exempt current green card holders and nonimmigrants with a valid visa or other entry document: the new order does not revoke any existing visas or green cards. The new order also exempts any dual national of one of the listed countries, so long as they are traveling on the passport of the non-listed country (e.g. a Canadian-Iranian dual national is admissible on his or her Canadian passport).  

New Countries: The order adds three new countries to the “travel ban:” Chad, North Korea and Venezuela.   Chad, a central African country west of Sudan, is treated similarly to two other Muslim-majority countries, Libya and Yemen, as described below. The restrictions on Venezuela and North Korea may have limited practical effect, and may well have been included in the Proclamation because neither country is Muslim-majority, allowing the administration to argue before the Supreme Court (and in the court of public opinion) that the Proclamation is no longer a “Muslim ban.”

Restrictions Removed: Sudan was removed from the list of countries with visa restrictions, and does not have any additional visa restrictions pursuant to the Proclamation than any other country.

Entry Suspended for Government Officials and Families as Visitors Only: Venezuela. The Proclamation bars officials of several Venezuelan government agencies involved with identity management and sharing of visa screening information, along with their immediate family, from receiving nonimmigrant visitor (B-1/B-2) visas, unless a waiver is issued. Most Venezuelan visa applications will be unaffected.

Entry Suspended for New Immigrants Only: Somalia. Somalis seeking new entry as immigrants (coming from overseas for initial entry as a permanent resident) will require a waiver, as outlined above. Somalis seeking nonimmigrant visas such as visitor (B-1/B-2), student (F and M), exchange visitor (J) or temporary work (H-1, H-2, etc) visas are not barred, but will face additional security clearances in the visa application process.

Entry Suspended for New Immigrants and for Visitors: Chad, Libya, Yemen. Nationals of these three countries seeking new entry as immigrants (coming from overseas for initial entry as a permanent resident) will require a waiver, as outlined above. Nationals of these countries seeking nonimmigrant visitor visas (B-1/B-2 visas) will also require a waiver. Applicants for other nonimmigrant visas such as student (F and M), exchange visitor (J) or temporary work (H-1, H-2, etc) visas are not covered by the Proclamation, but as a practical matter may face significant delays for security clearances during the visa application process.

Entry Suspended for New Immigrants and for all Nonimmigrants Except Students and Scholars (F, M and J Nonimmigrants): Iran. Iranians seeking new entry as immigrants (coming from overseas for initial entry as a permanent resident) will require a waiver, as outlined above. Iranians seeking most nonimmigrant visas, such as visitors (B-1/B-2) and temporary workers (H-1, H-2, etc) will also require a waiver.   Applicants for nonimmigrant visas as students (F and M), exchange visitors (J) are not covered by the Proclamation, but as a practical matter may face significant delays for security clearances during the visa application process.

Entry Suspended for New Immigrants and for all Nonimmigrants: Syria, North Korea. All nationals of these countries seeking new entry as immigrants (coming from overseas for initial entry as a permanent resident) or as any type of nonimmigrant (other than diplomats) will require a waiver, as outlined above.

What the Future Holds: Advocates may challenge the Proclamation, but it is much more limited in scope than the Administration’s first Executive Order from January 28 that was struck down as a “Muslim Ban.” At the same time, the Proclamation may be subject to challenge as exceeding the President’s statutory authority: with the Proclamation, the President has created a parallel visa issuance regime for these countries that is different from the one Congress created.

The Proclamation contains no internal expiration date, but does contain a mechanism whereby Cabinet Secretaries can propose that countries be removed from the Proclamation’s coverage once their identity management and information sharing meet the standards set by the Proclamation.

It remains to be seen whether the Proclamation will result in any improvement in the number of visas issued to nationals of the affected countries. State Department visa issuance statistics have shown that most of the original “travel ban” countries have seen the number of visas issued to their nationals decline from prior years, though annual statistics from prior years are difficult to compare to current year month-by-month statistics.

Clients with questions about the Proclamation and its effect on them should contact their Klasko Immigration Law Partners attorney.