On December 4, 2017, the U.S. Supreme Court issued two brief orders (one relating to the Ninth Circuit and the other to the Fourth Circuit) terminating the preliminary injunction against the Trump administration’s travel ban 3.0. As of December 4, 2017 and unless modified by a later decision on the substantive question of the legality of the travel ban, the Trump travel ban is effective in its entirety. Meanwhile, legal challenges proceed against the ban will continue in the Ninth and Fourth Circuit Courts of Appeal, and may be appealed to the Supreme Court in the future. Notably, the Supreme Court order means that the Ninth Circuit order in November 2017 allowing for exemptions for those with a “bona fide relationship” with a U.S. person or entity is no longer in effect.
Foreign nationals from eight countries: Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen are subject to travel restrictions, varying from a complete ban against travel, to specific bans against specified government officials. Specifically:
- Nationals of North Korea and Syria will not be permitted to enter the U.S. as either immigrants (that is, seeking issuance or initial admission on immigrant visas) or nonimmigrants (such as B-1/B-2 visitors, F students, H-1B or L-1 workers, etc.).
- Nationals of Venezuela who are officials of Venezuelan government agencies involved in national security or public safety roles will not be permitted to enter the U.S. as nonimmigrant B-1 business or B-2 tourist visitors. Venezuelan nationals in general are subject to heightened scrutiny.
- Nationals of Iran will not be permitted to enter the U.S. as immigrants (that is, seeking issuance or initial admission on immigrant visas) or nonimmigrants, with an exception for Iranians with valid student (F and M) or exchange visitor (J) visas. Iranian nationals in general are subject to heightened scrutiny.
- Nationals of Somalia will not be permitted to enter the U.S. as immigrants (that is, seeking issuance or initial admission on immigrant visas). Somalian nationals applying for nonimmigrant visas are subject to additional terrorism and security checks.
- Nationals of Chad, Libya, and Yemen will not be permitted to enter the U.S. as immigrants (that is, seeking issuance or initial admission on immigrant visas) or as nonimmigrant B-1/B-2 visitors.
The ban provides for case-by-case waivers for foreign nationals otherwise subject to the travel ban. The requirements for eligibility for such waivers are high. In order to be considered for a waiver of the ban, affected foreign nationals must demonstrate the following:
- denying the applicant entry would cause undue hardship,
- the applicant is not a threat to national security or public safety, and
- the applicant’s entry is in the national interest.
There is currently no Department of State form or specified procedure to apply for a waiver.
Certain nationals of the targeted countries are exempted from the travel ban; these include:
- Lawful permanent residents (green card holders).
- Persons already granted status as an asylee or refugee, or granted withholding of removal, advance parole, or Convention Against Torture relief.
- For persons whose visas were marked revoked or cancelled solely due to the earlier March 6 executive order; the cancelled/revoked document will not bar entry.
- Persons with valid travel documents other than a visa, such as advance parole, a transportation letter, or appropriate boarding foil.
- Dual-nationals who travel on a passport from a country not designated in the ban.
- Persons traveling on certain valid diplomatic visas.
Potentially affected foreign nationals should seek the advice of an immigration attorney before traveling. Contact your team at Jackson & Hertogs if you require a consultation.