Updates on Executive Order “Travel Bans”

**UPDATE** On Wednesday, January 20, 2021, President Biden issued a new Presidential Proclamation that revoked the previous travel bans related to people from predominantly Muslim and African countries. A link to this new proclamation is available here. The State Department has been charged with creating a plan for immigrant visas denied under the prior ban to be reconsidered, and to ensure that no visa applicants are negatively affected by prior denials under the ban if they re-apply for a visa. Please note that a separate proclamation affecting certain Venezuelan nationals associated with the Maduro government remains in effect.

 

**UPDATE** On Friday, January 31, 2020, the President issued a proclamation to suspend certain immigrant visa issuance to foreign nationals from six countries, with some exceptions. This order will take effect on Friday, February 21, 2020.

The new countries covered are Burma (Myanmar), Eritrea, Kyrgyzstan, Nigeria, Sudan, and Tanzania. The limitations pertaining to these six countries are not as expansive as those currently in place concerning Iran, Libya, North Korea, Somalia, Syria, Yemen and, to a lesser extent, Venezuela.

 

Below is a list of each country and the new restrictions:

Burma (Myanmar): suspension of issuance of immigrant (which is different than nonimmigrant) visa stamps, except Special Immigrant stamps (which are special visas based on the applicant having provided assistance to the U.S. government)

Eritrea: suspension of issuance of immigrant visa stamps, except Special Immigrant stamps

Kyrgyzstan: suspension of issuance of immigrant visa stamps, except Special Immigrant stamps

Nigeria: suspension of issuance of immigrant visa stamps, except Special Immigrant stamps

Sudan: suspension of issuance of diversity visa stamps (also known as the ‘green card lottery’)

Tanzania: suspension of issuance of diversity visa stamps (also known as the ‘green card lottery’)

PLEASE NOTE that nonimmigrant visa stamps (Fs, Js, H-1Bs, etc.) are not impacted. This proclamation also does not extend to the adjudication by USCIS of I-485 green card applications filed by nationals of Burma, Eritrea, Kyrgyzstan, Nigeria, Sudan, and Tanzania who are already in the U.S.

 

The travel ban only applies to foreign nationals of the designated countries who:

(i)    are outside the United States on the applicable effective date of this proclamation;

(ii)   do not have a valid visa on the applicable effective date of this proclamation; and

(iii)  do not qualify for a visa or other valid travel document under section 6(d) of Proclamation 9645.

The new proclamation incorporates the exemption and waiver provisions in the existing travel ban, so several classes of foreign nationals are exempt from the new restrictions. Those exempt include:

  • Current U.S. lawful permanent residents;
  • Dual nationals traveling on a passport from a non-restricted country;
  • Foreign nationals who hold a valid U.S. visa or advance parole; and
  • Those who are physically in the United States or hold a valid visa or other travel document on the effective date of the new proclamation.

Those who are not exempt may request a waiver when applying for an immigrant visa. To be eligible for a waiver, a foreign national must demonstrate that they would suffer undue hardship if denied entry, and that their entry would not pose a threat to U.S. national security or public safety and would be in U.S. national interest. Waivers are discretionary and are difficult to obtain.

As a reminder, all foreign nationals, including those exempt from these new restrictions mentioned above, are subject to national security screening and the potential for additional vetting when applying for a U.S. visa or admission to the United States.

 

 

**UPDATE** – On June 26, 2018, the U.S. Supreme Court upheld a presidential proclamation (“travel ban”) that imposes indefinite travel restrictions on certain nationals of Iran, Libya, North Korea, Somalia, Syria, Venezuela and Yemen. The Supreme Court held (by a 5-4 vote) that the President acted within his authority and has broad powers to suspend the entry of foreign nationals where such entry would be detrimental to the national interest. The Court determined that the travel restrictions were justified by national security concerns and that the plaintiffs in the case were unlikely to succeed in their claim that the restrictions violate the First Amendment. The Court also held that laws prohibiting nationality-based discrimination do not limit the President’s power to determine who may enter the United States. Please see the chart below (in the April 10, 2018 update) for the current restrictions which will now remain in place indefinitely. The Administration can remove or add countries to this list, and/or broaden (or reduce) the restrictions already currently in place. For more detailed information about the decision, including which Justices voted for and against it, please see http://www.scotusblog.com/2018/06/opinion-analysis-divided-court-upholds-trump-travel-ban/#more-272060. For a copy of the full 92 page decision, please see https://www.supremecourt.gov/opinions/17pdf/17-965_h315.pdf. See also https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/presidential-proclamation-archive/june_26_supreme_court_decision_on_presidential_proclamation9645.html.

 

*Update* – On April 25, 2018, the U.S. Supreme Court heard oral arguments in the “travel ban” case, Trump v. Hawaii. A decision is not expected until late June 2018. A link to the audio transcript is available at https://www.supremecourt.gov/oral_arguments/audio/2017/17-965, and to the written transcript at https://www.supremecourt.gov/oral_arguments/argument_transcripts/2017/17-965_3314.pdf.

 

*Update* – April 10, 2018: Effective April 13, 2018, the U.S. President has lifted the travel restrictions for nationals from the country of Chad, following a period of review in which the Government of Chad improved its identity-management and information sharing practices. This means that the “travel ban” is no longer in effect for nationals of Chad.

As a result of the April 10 Proclamation, nationals of seven countries are currently subject to various travel restrictions contained in the Proclamation, as outlined in the following table, subject to exceptions and waivers set forth in the Proclamation.

Country Nonimmigrant Visas Immigrant and Diversity Visas
Iran No nonimmigrant visas except F, M, and J visas No immigrant or diversity visas
Libya No B-1, B-2, and B-1/B-2 visas No immigrant or diversity visas
North Korea No nonimmigrant visas No immigrant or diversity visas
Somalia Nonimmigrant visas subject to heightened scrutiny No immigrant or diversity visas
Syria No nonimmigrant visas No immigrant or diversity visas
Venezuela No B-1, B-2 or B-1/B-2 visas of any kind for officials of the following government agencies 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.
Yemen No B-1, B-2, and B-1/B-2 visas No immigrant or diversity visas

 

*Update* – February 3, 2018: for an article that summarizes the history of the travel bans and their affect on the higher education community, please see https://www.insidehighered.com/news/2018/02/01/year-later-trump-administrations-travel-restrictions-opposed-many-higher-ed-are.

 

*Update* – On January 19, 2018, the U.S. Supreme Court agreed to review the legality of the government’s latest travel ban. The 9th Circuit Court of Appeals had ruled that the travel ban violated federal immigration law, and the administration is appealing that decision to the Supreme Court. For more information, see http://thehill.com/regulation/court-battles/369770-supreme-court-to-take-up-trump-travel-ban.

 

*Update* – On December 4, 2017, the U.S. Supreme Court issued an order allowing the Trump Administration to fully enforce its travel restrictions on certain nationals of Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela and Yemen, pursuant to the Presidential Proclamation issued on September 24, 2017.

The Trump Administration had previously been barred from implementing the ban on its intended effective date of October 18, 2017, after two lower federal courts issued injunctions that temporarily suspended enforcement of most of the ban’s restrictions. Following the Administration’s appeal of those rulings and request for temporary permission to implement the proclamation, the Ninth Circuit Court of Appeals allowed it to partially take effect, but exempted travelers with a bona fide relationship to a person or entity in the United States.

Monday’s order by the Supreme Court removes the relationship exemption and allows the Administration to fully implement the ban while challenges continue in the Courts of Appeals for the Fourth and the Ninth Circuits. No travel visas that have already been issued will be revoked based on the Proclamation.

Below is a chart, created by a colleague, that summarizes the restrictions announced in the September Presidential Proclamation:

 

Country Nonimmigrant Visas Immigrant and Diversity Visas
Chad No B-1, B-2, and B-1/B-2 visas No immigrant or diversity visas
Iran No nonimmigrant visas except F, M, and J student visas

 

No immigrant or diversity visas
Libya No B-1, B-2, and B-1/B-2 visas No immigrant or diversity visas
North Korea No nonimmigrant visas

 

No immigrant or diversity visas
Syria No nonimmigrant visas

 

No immigrant or diversity visas
Venezuela No B-1, B-2 or B-1/B-2 visas of any kind for officials of the following government agencies 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. No restrictions
Yemen No B-1, B-2, and B-1/B-2 visas No immigrant or diversity visas
Somalia No immigrant or diversity visas

 

*Update* – On November 13, 2017, the Ninth Circuit Court of Appeals issued an order to stay (suspend) the Hawaiian District Court’s October 20, 2017 preliminary injunction against entry restrictions on nationals of six countries, except as related to foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States. People with qualifying relationships include grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, cousins, nieces and nephews. A qualifying relationship with an entity must be formal and documented, and not be entered into just for the purpose of evading these entry restrictions. This action by the Ninth Circuit means that the travel ban will again apply to people from Chad, Iran, Libya, Somalia, Syria and Yemen who do not have verifiable connections to the United States. The Ninth Circuit will hear oral arguments in this case on December 6, 2017, and the Fourth Circuit Court of Appeals will hear an appeal on the same issue from a Maryland District Court on December 8. The Hawaiian District Court had not stopped the entry restrictions against nationals of North Korea and certain nationals of Venezuela, so the travel ban has remained in effect for those individuals. For more information, see http://www.reuters.com/article/us-usa-immigration-ruling/appeals-court-lets-trump-travel-ban-go-partially-into-effect-idUSKBN1DD272.

 

*Update* – On September 24, 2017, the Trump Administration unveiled new travel restrictions on certain nationals from Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela and Yemen as a replacement to part of the travel ban it implemented earlier this year. The old travel ban expired on Sunday (September 24), and the new restrictions on travel vary by country and include a phased-in approach that will begin immediately for some people and on October 18 for others. These new restrictions are effective immediately for foreign nationals who were the subject of the prior travel ban and lacked a credible claim of a bona fide relationship with a person or entity in the U.S.; and they are effective as of October 18, 2017 for all other persons subject to the Proclamation, including nationals of Iran, Libya, Somalia, Syria and Yemen who have a credible claim of a bona fide relationship with a person or entity in the U.S., and Chad, North Korea and Venezuela.  No previously issued green cards, travel documents or visas will be revoked.

Sudan was removed completely from the list of affected countries, and two non-Muslim majority countries were added to the list: North Korea and Venezuela. The new restrictions are indefinite, and allow consular officers to use discretion to waive the new restrictions on a case-by-case basis if the foreign national can demonstrate “undue hardship” if not allowed into the U.S., and that he/she does not pose a national security threat. In light of this new travel proclamation, on September 25, the Supreme Court of the United States cancelled the October oral arguments on the legality of the travel ban(s) and has requested briefs from both sides to determine whether the issue before it is now moot.

Here is a breakdown of the new restrictions by country:

Chad, Libya and Yemen: entry as immigrants and nonimmigrants on certain business and tourist visas will be suspended.

Iran: entry as immigrants and nonimmigrants will be suspended, EXCEPT for valid student and exchange visitor visa recipients, after enhanced screening and vetting requirements are met.

North Korea and Syria: entry as nonimmigrants and immigrants will be suspended.

Somalia: entry as immigrants will be suspended; nonimmigrants will face enhanced screening and vetting requirements.

Venezuela: suspension of entry of certain Venezuelan government officials and their immediate family members as nonimmigrants on certain business and tourist visas.

More information can be found at https://www.whitehouse.gov/the-press-office/2017/09/24/enhancing-vetting-capabilities-and-processes-detecting-attempted-entry and https://www.whitehouse.gov/the-press-office/2017/09/24/faq-proclamation-enhancing-vetting-capabilities-and-processes-detecting.

 

*Update* – On July 19, 2017, the U.S. Supreme Court released its fall calendar, and has scheduled oral arguments on the travel ban case on October 10, 2017.  Fore more information, see http://thehill.com/regulation/court-battles/342760-supreme-court-sets-date-for-trump-travel-ban-arguments. For more information regarding how the Department of State will handle visa applications and appointments from these family members, please see https://travel.state.gov/content/travel/en/news/important-announcement.html.

 

*Update* – On July 19, 2017, the U.S. Supreme Court allowed the Hawaiian federal district court’s July 13, 2017 injunction to stand, which expanded the types of qualifying familial relationships (grandparents, aunts, uncles, cousins, etc.). However, the Supreme Court did not uphold the portion of the federal judge’s injunction to exempt from the travel ban refugees who have a formal assurance from a resettlement agency in the U.S. or who are part of the Lautenberg program – that matter will return to the 9th Circuit Court of Appeals for further review.

 

*Udpate* – On July 13, 2017, the federal district court in Hawaii modified its preliminary injunction to prevent the U.S. government from enforcing Executive Order 13780 (the second EO issued in March 2017) against grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews and cousins of persons in the United States; and also against refugees who have a formal assurance from a resettlement agency in the U.S. or who are part of the Lautenberg program (https://www.hias.org/lautenberg-amendment). On July 14, 2017, the Trump Administration filed a notice of appeal to the 9th Circuit Court of Appeals (which includes Hawaii) of the district court’s July 13 order modifying the preliminary injunction.

 

*Update* – On June 29, 2017, the Department of Homeland Security publicly released an FAQ memo related to the implementation of part of the “travel ban” Executive Order. The FAQ can be found at https://www.dhs.gov/news/2017/06/29/frequently-asked-questions-protecting-nation-foreign-terrorist-entry-united-states. The ban officially went into effect late today for those individuals who were not already specifically exempted and for those who do not meet the exceptions outlined by the U.S. Supreme Court in its June 27, 2017 opinion. (See the June 26, 2017 update below for more information.)

Additionally, DHS has further defined what the U.S. Supreme Court meant by a ‘close family relationship’ for the purpose of the travel ban: it is defined as a parent (including in-laws), spouse, fiance, child, adult son or daughter, son-in-law or daughter-in-law, or a sibling (whole or half), including step relationships. It does NOT include grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-law, sisters-in-law, or any other extended family members.

Pursuant to the express language of the March 6 Executive Order, individuals from the six affected countries are already exempt from the travel ban if he/she falls into one of the following categories:

  • U.S. lawful permanent resident (green card holder);
  • Dual national traveling on a passport from a non-restricted country; (Canadian permanent residents are not exempt);
  • Possesses a valid, multiple-entry U.S. visa and is otherwise admissible to the United States;
  • Applicant for adjustment of status with valid advance parole;
  • Granted asylum in the United States; or
  • Admitted as a refugee or is a refugee whose travel was already formally scheduled by the U.S. State Department.

 

*Update* – On June 26, 2017, the U.S. Supreme Court (the Court) issued an opinion which allows part of Executive Order 13780 (the revised “travel ban”) to go into effect 72 hours from the issuance of the opinion (Thursday, June 29) for a period of 90 days (or 120 days for non-exempt refugees). The Court will hear oral arguments on the full Executive Order in October 2017.

Pursuant to the Court’s decision, the federal government will institute the ban against initial visa issuance and entry into the United States for foreign nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen who “lack any bona fide relationship with a person or entity in the United States.” The Court leaves the 4th and 9th Appellate Court injunctions in place for individuals from those six countries who can prove a “bona fide relationship,” as long as the relationship (with an entity, such as NC State), is “formal, documented, and formed in the ordinary course, rather than for the purpose of evading [the Executive Order]. The students from the designated countries who have been admitted to [a university] have such a relationship with an American entity. So too would a worker who accepted an offer of employment from an American company or a lecturer invited to address an American audience.” A link to the Supreme Court opinion is available at: https://www.supremecourt.gov/opinions/16pdf/16-1436_l6hc.pdf

According to the Court, examples of a bona fide relationship include:

  • Close familial relationships;
  • Students at U.S. universities or individuals who have already been admitted to a U.S. university;
  • Employees of U.S. entities or individuals that have already accepted employment with a U.S. entity; or
  • Foreign nationals invited to lecture to an American audience

It is not clear how DOS and DHS will treat those nationals who have already applied for admission to a university but have not yet been accepted. All international travelers should continue to expect delays during visa appointments and at ports of entry.

We continue to recommend that foreign nationals from any of the six countries already in the U.S. with bona fide ties continue to use caution before deciding to leave and re-enter the United States. If travel is necessary, we strongly recommend that individuals from any of the six countries carry extensive documentation showing their bona fide ties to the United States.

 

*Update* – Based on the decision from the 9th Circuit Court of Appeals on June 12, the U.S. Supreme Court has ordered the federal government and challengers to file additional legal briefs for its review regarding the government’s request to reinstate the travel ban. The government was required to file its brief on June 15; parties challenging the travel ban have until June 20 to respond; and then the government will have until June 21 to file a reply to the challenger’s response.

 

*Update* – On June 12, 2017, a unanimous three-judge panel of the U.S. Court of Appeals for the 9th Circuit ruled against the Trump Administration’s revised “travel ban,” although for a different reason than the 4th Circuit Court of Appeals. The 9th Circuit indicated that the President had exceeded the authority granted to him by Congress in making national security judgments in the area of immigration without adequate justification, whereas the 4th Circuit  stated that the revised executive order violated the First Amendment’s prohibition of government establishment of religion. In related news, attorneys challenging the travel ban filed briefs with the U.S. Supreme Court of the United States on June 12 requesting that the Supreme Court decide not to hear the case, which would have the effect of upholding the 4th and 9th Circuit Court decisions to invalidate the travel ban portion of the revised executive order. Please see http://thehill.com/homenews/administration/337434-appeals-court-refuses-to-reinstate-trump-travel-ban, or other online sources for more information.

 

*Update* – On June 1, 2017, the Trump Administration asked the U.S. Supreme Court of the United States for immediate permission to enforce its March 6, 2017 “travel ban” Executive Order, and also for a ruling in its next term on the legality of that Executive Order. Currently, several federal court injunctions against the travel ban remain in place, but the Supreme Court could potentially reinstate the Executive Order as early as later this month. For more information, please see http://www.scotusblog.com/2017/06/trump-administration-asks-justices-weigh-travel-ban/, among other online resources.

 

*Update* – On May 25th, the 4th Circuit Court of Appeals affirmed in substantial part the lower court’s issuance of a nationwide injunction regarding the Executive Order issued on March 6, which suspended the entry of nationals from six Muslim-majority countries for 90 days. This decision means that the “travel ban” remains suspended, and nationals from Iran, Libya, Somalia, Sudan, Syria and Yemen can continue to apply for visas and entry the U.S. provided that they are otherwise admissible. Although a decision from the 9th Circuit Court of Appeals remains pending, the Attorney General has already declared that he would appeal the 4th Circuit’s decision to the U.S. Supreme Court. International Employment continues to recommend against international travel for anyone from one of the 6 countries mentioned in the original Order until a final decision is reached.

 

On May 8th, the full bench of the 4th U.S. Circuit Court of Appeals (whose jurisdiction includes the State of North Carolina) held a hearing on the temporary restraining order (TRO) issued by a federal judge in Maryland which blocked parts of the President’s revised “travel ban” Executive Order which was due to take effect on March 16. No decision has been issued yet by the 4th Circuit, but it could come in the next few weeks. Additionally, on May 16th, a three-judge panel of the 9th U.S. Circuit Court of Appeals also held a hearing on the TRO issued by a federal judge in Hawaii that also blocked parts of the President’s revised “travel ban” Executive Order. The 9th Circuit typically takes approximately 3 months to issue a decision. Since decisiond by either Court could come at any time, International Employment still strongly recommends against international travel for any faculty, staff or students who are from Iran, Iraq, Libya, Somalia, Sudan, Syria or Yemen. Given the high level of attention, scrutiny and uncertainty still surrounding this issue, no smooth or hassle-free re-entry can be guaranteed for anyone, even with proper and valid travel documents (including green cards).

For more information, please see http://www.reuters.com/article/us-usa-immigration-court-idUSKCN18B0RB or http://www.cnn.com/2017/05/15/politics/9th-circuit-travel-ban-hearing-round-two/.