Latest US travel ban restored by Supreme Court

The latest US travel ban initiated by the Trump administration is to be restored, according to the US Supreme Court. What should those travelling from effected countries take into consideration?

US Immigration security at airport
On the 5th of December 2017, the US Supreme Court allowed the Trump administration’s latest travel ban to take full effect while the case is pending litigation on the merits, to determine whether all or part of the ban is unconstitutional and should be permanently enjoined.The State Department has announced that the travel ban will take full effect from 8th December 2017. Restrictions on nationals of Venezuela and North Korea went into effect on 18th October 2017.According to Reuters, “The court, with two of the nine justices dissenting, granted his administration’s request to lift two injunctions imposed by lower courts that had partially blocked the ban, which is the third version of a contentious policy that Trump first sought to implement a week after taking office in January.”

Background of the original Trump travel ban

On the 24th of September 2017, just as the previous travel ban was due to expire, the US President issued a Proclamation indefinitely imposing various new restrictions on immigrant and non-immigrant entry for certain nationals of five of the countries affected by the previous travel ban (Iran, Libya, Somalia, Syria and Yemen) and three additional non-Muslim majority countries (Chad, North Korea and Venezuela). See also this Department of Homeland Security fact sheet.Note that travel restrictions were removed from Sudanese nationals. The latest travel restrictions do not affect refugees.Subsequently, lower courts issued injunctions preventing the new version of the ban from going into full effect, and on November 13th, the Ninth Circuit Court of Appeals issued an order that partially upheld a lower’ court’s injunction.The Ninth Circuit decision had allowed the travel ban to be enforced, except with respect to those who have “a bona fide relationship with a person or entity in the US.”

US immigration policy: who is affected?

The proclamation can now be enforced as indicated in the chart below and no exception is provided for those with “a bona fide relationship with a person or entity in the US”.The restrictions are in place indefinitely, though the proclamation provides that countries may be removed from the list upon meeting certain criteria listed in the proclamation with respect to “identity-management information”, “national security and public-safety information”, and “national security and public-safety risk assessment.”The proclamation generally applies to foreign nationals referenced below who are outside the US on the effective date and do not have a valid visa on the effective date. 
NationalityRestrictions
ChadNon-immigrant B-1, B-2, or B-1/B-2 visas and immigrant visas are suspended.
IranImmigrant and non-immigrant visas are suspended, except for applicants for and holders of valid student (F and M) and exchange visitor (J) visas.  Individuals applying for or possessing these visas will be subject to enhanced screening and vetting.
LibyaNon-immigrant B-1, B-2, or B-1/B-2 visas and immigrant visas are suspended.
North KoreaAll non-immigrant and immigrant visas are suspended.
SomaliaAll immigrant visas are suspended.  Applicants for non-immigrant visas will be subject to enhanced screening and vetting.
SyriaAll non-immigrant and immigrant visas are suspended.
VenezuelaNon-immigrant (B-1, B-2, and B-1/B-2) visas for Venezuelan governmental officials involved in screening and vetting procedures for entry into Venezuela and their immediate family members are suspended.  Venezuelan visa applicants and current visa holders will be subject to enhanced screening and vetting
YemenNon-immigrant B-1, B-2, or B-1/B-2 visas and immigrant visas are suspended.

Exceptions

The new order does not apply to:
  • Nationals of the applicable countries who are already in the US
  • Valid visa holders
  • Lawful permanent residents (LPR)
  • Dual nationals travelling under the passport of the non-designated country

Waivers

Those who are impacted and do not fall under at least one of the exceptions may apply for a waiver. The proclamation directs the Secretaries of State and Homeland Security to “coordinate to adopt guidance addressing the circumstances in which waivers may be appropriate for foreign nationals seeking entry as immigrants or non-immigrants.”Waivers may be granted, “only if a foreign national demonstrates to the consular officer’s or CBP official’s satisfaction” each of the following elements:1 Denying entry would cause the foreign national undue hardship2 Entry would not pose a threat to the national security or public safety of the US3 Entry would be in the national interest. Individuals who secure a waiver must still demonstrate that they meet all other requirements of the requested visa category

Considerations for employees

  • Employees of nationals of the eight affected countries who may be affected by these travel restrictions are advised to consult with an immigration attorney.
This immigration update was produced by Peregrine Immigration Management, the global immigration services company and prepared by using information provided by Maggio + Kattar, Littler and Foster.For related news and features, visit our Immigration section.Relocate’s new Global Mobility Toolkit provides free information, practical advice and support for HR, global mobility managers and global teams operating overseas.Access hundreds of global services and suppliers in our Online DirectoryClick to get to the Relocate Global Online Directory

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