On September 24, 2017, President Donald Trump issued a “Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats” (hereinafter “the Proclamation”). A follow-up to Executive Order 13780: Protecting the Nation from Foreign Terrorist Entry into the United States (popularly known as the “travel ban”) issued on March 6, 2017, the Proclamation was issued on the same day Executive Order 13780 was set to expire. That order barred citizens of Iran, Libya, Somalia, Sudan, Syria, and Yemen who lack a “credible claim of a bona fide relationship with a person or entity in the United States” from entering the United States.

In accordance with Executive Order 13780, President Trump ordered the review of what additional information is needed from each foreign country to assess adequately whether their nationals seeking to enter the United States pose a security or safety threat. The Secretary of Homeland Security, in consultation with the Secretary of State and Director of National Intelligence, developed a list of criteria required from each foreign government to assist the United States in confirming the identity of individuals seeking entry into the United States, and to assess whether they are a security or public-safety threat, including:

  1. Identity-management information. “The criteria assessed in this category include whether the country issues electronic passports embedded with data to enable confirmation of identity, reports lost and stolen passports to appropriate entities, and makes available upon request identity-related information not included in its passports.”1
  2. National security and public-safety information. “The criteria assessed in this category include whether the country makes available, directly or indirectly, known or suspected terrorist and criminal-history information upon request, whether the country provides passport and national-identity document exemplars, and whether the country impedes the United States Government's receipt of information about passengers and crew traveling to the United States.”2
  3. National security and public-safety risk assessment. “The national security and public-safety risk assessment category focuses on national security risk indicators. The criteria assessed in this category include whether the country is a known or potential terrorist safe haven, whether it is a participant in the Visa Waiver Program established under section 217 of the INA, 8 U.S.C. 1187, that meets all of its requirements, and whether it regularly fails to receive its nationals subject to final orders of removal from the United States.”3

Based on these criteria, the Department of Homeland Security and Department of State collected information on every foreign country and determined that Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen, and Somalia4 were deficient in one or all categories, and issued the following restrictions on immigrant5 and/or nonimmigrant6 visas:

Country

Effect on Nonimmigrant Visas

Effect on Immigrant Visas

Stated Reasons

Chad

Suspension of all entry on B-1,7 B-2,8 and B-1/B-29 visas.

Suspension of grants of all immigrant visas

“Chad does not adequately share public-safety and terrorism-related information and fails to satisfy at least one key risk criterion. Additionally, several terrorist groups are active within Chad or in the surrounding region, including elements of Boko Haram, ISIS-West Africa, and al-Qa’ida in the Islamic Maghreb.”10

Iran

Suspension of all entry on nonimmigrant visas, except F,11 M,12 and J13 visas.

Suspension of grants of all immigrant visas.

“Iran regularly fails to cooperate with the United States Government in identifying security risks, fails to satisfy at least one key risk criterion, is the source of significant terrorist threats, and fails to receive its nationals subject to final orders of removal from the United States. The Department of State has also designated Iran as a state sponsor of terrorism.”14

Libya

Suspension of all entry on B-1, B-2, and B-1/B-2 visas.

Suspension of grants of all immigrant visas.

“Libya . . . faces significant challenges in sharing several types of information, including public-safety and terrorism-related information necessary for the protection of the national security and public safety of the United States. Libya also has significant inadequacies in its identity-management protocols. Further, Libya fails to satisfy at least one key risk criterion and has been assessed to be not fully cooperative with respect to receiving its nationals subject to final orders of removal from the United States. The substantial terrorist presence within Libya’s territory amplifies the risks posed by the entry into the United States of its nationals.”15

North Korea

Suspension of entry on all nonimmigrant visas.

Suspension of grants of all immigrant visas.

“North Korea does not cooperate with the United States Government in any respect and fails to satisfy all information-sharing requirements.”16

Syria

Suspension of entry on all nonimmigrant visas.

Suspension of grants of all immigrant visas.

“Syria regularly fails to cooperate with the United States Government in identifying security risks, is the source of significant terrorist threats, and has been designated by the Department of State as a state sponsor of terrorism. Syria has significant inadequacies in identity-management protocols, fails to share public-safety and terrorism information, and fails to satisfy at least one key risk criterion.”17

Venezuela

Suspension of entry of the officials of the following government agencies on B-1, B-2, or B-1/B-2 visas and their immediate family members:

  • Ministry of the Popular Power for Interior, Justice, and Peace
  • Administrative Service of Identification, Migration, and Immigration
  • Bolivarian National Intelligence Service
  • Ministry of the Popular Power for Foreign Relations

No restrictions.

“Venezuela’s government fails to share public-safety and terrorism-related information adequately, fails to satisfy at least one key risk criterion, and has been assessed to be not fully cooperative with respect to receiving its nationals subject to final orders of removal from the United States. As a result, the restrictions imposed by this proclamation focus on government officials of Venezuela who are responsible for the identified inadequacies.”18

Yemen

Suspension of all entry on B-1, B-2, and B-1/B-2 visas.

Suspension of grants of all immigrant visas.

“The government of Yemen fails to satisfy critical identity-management requirements, does not share public-safety and terrorism-related information adequately, and fails to satisfy at least one key risk criterion.”19

Somalia

All nonimmigrant visas subject to “additional scrutiny” to determine if applicants connected to terrorist organizations or otherwise pose a threat to national security or public safety of the United States. The Department of State has taken the position that no nonimmigrant visas will be issued.

Suspension of grants of all immigrant visas.

“Somalia has significant identity-management deficiencies. . . . A persistent terrorist threat also emanates from Somalia’s territory. The United States Government has identified Somalia as a terrorist safe haven. Somalia stands apart from other countries in the degree to which its government lacks command and control of its territory, which greatly limits the effectiveness of its national capabilities in a variety of respects. . . . Somalia continues to struggle to provide the governance needed to limit terrorists’ freedom of movement, access to resources, and capacity to operate. The government of Somalia’s lack of territorial control also compromises Somalia’s ability, already limited because of poor recordkeeping, to share information about its nationals who pose criminal or terrorist risks.”20

Phased Implementation

The implementation of the Proclamation is to be phased-in as follows:

Phase 1: From 3:30 p.m. EDT on Sunday, September 24, 2017 until 12:01 a.m. EDT on

Wednesday, October 18, 2017:

Nationals of Iran, Libya, Syria, Yemen, and Somalia will remain under suspension of travel, except for those individuals who qualify for the bona fide “close family”21 exemption.

As of 3:30 p.m. EDT on Sunday, September 24, 2017, nationals of Sudan are no longer subject to any travel restrictions.

Phase 2: Beginning 12:01 a.m. EDT on Wednesday, October 18, 2017:

Nationals of Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen, and Somalia are subject to the restrictions listed in the chart, above. The bona fide relationship exemption will no longer apply to nationals of these eight (8) countries.

Exceptions

The following exceptions will apply to those nationals of Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen, and Somalia who meet one or more of the following criteria:22

  1. Any lawful permanent resident of the United States;
  2. Any foreign national who is admitted to or paroled into the United States on or after the applicable effective date under section 7 of this Proclamation;
  3. Any foreign national who has a document other than a visa—such as a transportation letter, an appropriate boarding foil, or an advance parole document—valid on the applicable effective date under section 7 of this Proclamation or issued on any date thereafter, that permits him or her to travel to the United States and seek entry or admission;
  4. Any dual national of a country designated under section 2 of this Proclamation when the individual is traveling on a passport issued by a non-designated country;
  5. Any foreign national traveling on a diplomatic or diplomatic-type visa, North Atlantic Treaty Organization visa, C-2 visa for travel to the United Nations, or G-1, G-2, G-3, or G-4 visa; or
  6. Any foreign national who has been granted asylum by the United States; any refugee who has already been admitted to the United States; or any individual who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture.

Waivers

The Proclamation provides that waivers may be granted on a case-by-case basis if a foreign national demonstrates to the consular officer’s or Customs and Border Protection official’s satisfaction that:23

  1. Denying entry would cause the foreign national 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.

Case-by-case waivers may be granted in individual circumstances such as the following:

  1. The foreign national has previously been admitted to the United States for a continuous period of work, study, or other long-term activity, is outside the United States on the applicable effective date under section 7 of this Proclamation, seeks to reenter the United States to resume that activity, and the denial of reentry would impair that activity;
  2. The foreign national has previously established significant contacts with the United States but is outside the United States on the applicable effective date under section 7 of this Proclamation for work, study, or other lawful activity;
  3. The foreign national seeks to enter the United States for significant business or professional obligations and the denial of entry would impair those obligations;
  4. 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 is a United States citizen, lawful permanent resident, or alien lawfully admitted on a valid nonimmigrant visa, and the denial of entry would cause the foreign national undue hardship;
  5. The foreign national is an infant, a young child or adoptee, an individual needing urgent medical care, or someone whose entry is otherwise justified by the special circumstances of the case;
  6. The foreign national has been employed by, or on behalf of, the United States government (or is an eligible dependent of such an employee), and the foreign national can document that he or she has provided faithful and valuable service to the United States government;
  7. The foreign national is traveling for purposes related to an international organization designated under the International Organizations Immunities Act (IOIA), 22 U.S.C. 288 et seq., traveling for purposes of conducting meetings or business with the United States government, or traveling to conduct business on behalf of an international organization not designated under the IOIA;
  8. The foreign national is a Canadian permanent resident who applies for a visa at a location within Canada;
  9. The foreign national is traveling as a United States Government-sponsored exchange visitor; or
  10. The foreign national is traveling to the United States, at the request of a United States government department or agency, for legitimate law enforcement, foreign policy, or national security purposes.

Practical Significance

It is important to note that not all of the eight countries are subject to an outright ban at this time. The restrictions on Venezuelans, for example, only affect certain government officials and their immediate relatives. Other countries are only subject to certain nonimmigrant visa restrictions. Notably, at least four of the countries (Chad, Libya, Venezuela, and Yemen) do not have restrictions on nonimmigrant employment visas such the H-1B and L-1. Likewise, Iranian nationals on F, M, and J status are not restricted to enter the United States by the Proclamation.

In addition, the Proclamation is expressly limited to individuals who do not have a valid visa on the effective date mentioned above. However, we opine that the text of the Proclamation is ambiguous as to how the suspension of entry would apply to those currently holding valid visas. Our position is that the Proclamation should not apply to them and further clarification will be necessary to resolve this ambiguity.

Notwithstanding, employers should be aware that although any previously scheduled visa application appointments will not be cancelled for foreign nationals from these eight countries, it will be at the discretion of the consular officer whether an applicant otherwise eligible for a visa is subject to or exempt from the restrictions set forth by the Proclamation. Employers should prepare for the possibility that employees with pending and/or not-yet-filed petitions for immigrant and/or certain nonimmigrant visas in accordance with the restrictions set out in the chart above may not receive visas once the Proclamation has been fully implemented.