On Dec 05 2017 by William A. Stock

CLIENT ALERT: Supreme Court Allows September 24 Entry Restrictions To Go Into Effect

Since being inaugurated, President Trump has tried on three occasions to use his presidential authority to “suspend entry” of foreign nationals to bar travel by nationals from several Muslim-majority countries. 

The courts have wholly or partially blocked his efforts, until last evening.  In a short order signed by the court as a whole and without explaining its reasoning, the Supreme Court lifted a temporary hold on the most recent version of President Trump’s “travel ban” Executive Orders.  It also clarified that no court should bar this version of the “travel ban” from going into effect until each court makes a final decision and the government has a chance to appeal that bar to the Supreme Court – an usual step for the Court. 

Sunday, September 24, the President issued a Proclamation that replaced his prior Executive Orders on the travel ban.  The Proclamation suspends entry for many nationals of eight countries; removes one country’s entry suspension; and has no internal expiration date. Here is what our clients need to know about the Proclamation suspending some entries from eight countries.

The Proclamation is more targeted than 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 contains a “waiver” or exception mechanism 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, 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).  Also, 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: The Supreme Court’s short order, and particularly its order preventing lower courts from temporarily imposing a bar on the Proclamation, sends a strong signal that a majority of the Court justices think that “the third time’s the charm” and that this time the Administration has validly exercised its statutory authority.  The Proclamation is much more limited in scope than the Administration’s first Executive Order from January 28 that was struck down as a “Muslim Ban,” and the courts previously left immigration policy choices largely to the elected branches of government (Congress and the Presidency), even where those courts thought the policy decision was ill-advised.   At the same time, litigation against the Proclamation continues, and the courts could still decide after full briefing that the Proclamation exceeds the President’s statutory authority or came from an unconstitutional anti-Muslim bias.

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.

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

The material contained in this article does not constitute direct legal advice and is for informational purposes only.  An attorney-client relationship is not presumed or intended by receipt or review of this presentation.  The information provided should never replace informed counsel when specific immigration-related guidance is needed.