The U.S. Supreme Court has cleared the way for enforcement of President Trump’s September 24, 2017 travel ban. On December 4, 2017, the U.S. Supreme Court issued two, virtually identical, orders staying preliminary injunctions issued against the travel ban by lower courts in Maryland and Hawaii. The Court’s actions allow the September 24, 2017 edition of the travel ban to proceed while the Fourth and Ninth Circuit Courts of Appeals consider legal challenges to the ban on an expedited basis.
The travel ban at issue is the third in a series of hotly contested immigration restrictions implemented by President Trump via Executive Order (EO). The September 24, 2017 presidential travel ban proclamation is grounded in a global review of information sharing and security practices and identification of countries deemed to be “inadequate” in this regard. The broad scope global information sharing and security review was mandated by the March 6, 2017 EO travel ban.
As explained in more detail, below, the September 24 proclamation contains travel restrictions applicable to nationals of eight countries: Iran, Libya, Somalia, Syria, Yemen, Chad, North Korea and Venezuela. Challenges to the ban filed in Maryland and Hawaii resulted in partial injunctions, applicable to the listed countries, other than North Korea and Venezuela. The injunctions limited the ban’s restrictions to foreign nationals without a bona fide relationship with certain persons (family) or entities in the U.S. Thus, the injunction provided a reprieve to eligible nationals of Iran, Libya, Somalia, Syria, Yemen, and Chad, if they could demonstrate a qualifying U.S. family or entity relationship. The Supreme Court’s December 4th order removes this injunction and, thereby, allows the proclamation to move forward in full force without a bona fide relationship exception.
The following explains the ban’s travel restrictions, applicable to eight designated countries.
Countries Under Travel Restrictions
The eight countries whose citizens or nationals are subject to some form of travel restriction under the September 24, 2017 proclamation are: Iran, Libya, Somalia, Syria, Yemen, Chad, North Korea, and Venezuela. Notably, Chad, North Korea and Venezuela were new additions to the travel ban. Also notable is the removal of Sudan. Sudan was included in both the initial January 27 EO travel ban and subsequent March 6 EO. As explained in more detail below, the specific restrictions vary from country to country. Phase-in periods for the restrictions have all passed; thus, there is no delay or phase in of these restrictions.
Least Restrictive: Venezuela
No B-1, B-2 or B1/B-2 (visitor) visas for designated government officials and their immediate family members. No other restrictions. The restrictions apply only to officials of the 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.
Most Restrictive: North Korea and Syria
North Korea and Syria: No non-immigrant or immigrant visas.
Remaining Countries: Libya, Yemen, Chad, Iran, Somalia
The remaining countries, Libya, Yemen, Chad, Iran and Somalia, are all precluded from immigrant (permanent) or diversity visas. There is variation in the level of restriction on non-immigrant (temporary) visas.
Somalia: No restrictions on non-immigrant visas.
Libya, Yemen and Chad: No B-1, B- 2 or B1/B-2 (visitor) visas.
Iran: No non-immigrant visas, except for F-1, M-1 (students) and J-1 (exchange visitors).
Clarifications and FAQs
To address some common misunderstandings and questions, it should be noted that:
-The restrictions apply only to nationals and citizens of the listed countries.
-The restrictions are not prohibitions placed upon individuals who have traveled to the listed countries. Restrictions based upon travel to particular countries were implemented under the Obama administration and are limited to visa waiver (ESTA) travel.
-Dual nationals of a restricted and non-restricted country may travel without restriction, provided they utilize ONLY travel documents issued by the non-restricted country. They must present only the passport of the non-restricted country. The U.S. visa (if any) must be in the non-restricted passport.
-The Venezuelan restrictions do NOT apply to anyone other than Venezuelan governmental officials. Government officials within designated departments are precluded from travel on B-1/B-2 (visitor) visas.
-The proclamation does not revoke or otherwise invalidate existing visas. Visas issued prior to the September 24, 2017 proclamation remain valid. (However, caution is advised for such individuals as there is the potential for misunderstandings in implementation of this provision at multiple points in the travel process.)
-The proclamation does not change the status of individuals present in the U.S., it restricts travel to the U.S. and issuance of designated new immigration benefits.
-The proclamation contains provisions for exceptions or waivers of the restrictions in limited circumstances.
Expect Additional Scrutiny at Port of Entry (and More)
Citizens and nationals of listed countries who continue to have immigration options should expect a higher level, strict review throughout the immigration process. Those seeking admission at a U.S. port of entry should anticipate placement in secondary inspection for a more detailed questioning and search of belongings. In the proclamation, this heightened scrutiny is specified as either “additional measures” for Venezuela, “enhanced screening and vetting” for Iran, or “additional scrutiny” for Somalia.
Iraq: Special Provisions
While Iraq is not included in the travel ban, it is identified in the proclamation as a country with “inadequate” identity-management protocols, information sharing practices and other risk factors. Therefore, nationals of Iraq are to be given strict scrutiny when trying to enter the U.S. Iraqis should be prepared for secondary inspection, with related delays and questioning, upon arrival at a U.S. port of entry. Although not specified in the proclamation, Iraqis should expect close scrutiny at all points in the immigration process.
Conclusion: Ongoing Uncertainties
This development is significant both in its effect as well as for what it indicates regarding the disposition of the Supreme Court toward the revised travel ban. The timing of this decision, just before peak holiday travel season, sets the stage for difficulties for international airlines, U.S. Ports of Entry, and international travelers. Moreover, this is far from the end of the travel ban journey. In addition to appeals in the fourth and ninth circuits, there are ongoing immigration and security related review requirements within the September 24 proclamation. These procedures, in turn, determine the need for nationality-based restrictions on immigration. This leaves open the likelihood of similar future immigration restrictions based upon country of birth or citizenship. As the result of a series of legal challenges, the restrictions are narrowing with each version of the travel ban. However, even with these modifications, the terms and uncertainties of the travel ban remain challenging for international travelers and their families, as well as the U.S. businesses that rely on foreign nationals as customers or employees.