Travel Ban Update: New Presidential Proclamation Restricts Travel to the United States From Eight Countries

September 27, 2017

On September 24, President Trump issued the "Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats." This proclamation serves to update and expand the preexisting immigration order that was signed in March 2017 and expired on September 24, 2017.

Foreign nationals from Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen and Somalia will now each face customized travel restrictions to the United States to "address the threats the countries' identity management protocols, information-sharing inadequacies, and the other risk factors pose to the security and welfare of the United States."

While Iraq has been removed from the travel ban, the proclamation states that additional scrutiny will be conducted for the purpose of granting visas and entry to the United States for Iraqi nationals.

The entry of nonimmigrants - temporary visitors or workers - from each of the countries listed is customized or tailored to each country with a different set of "mitigating factors" that might permit a national of one country to enter the United States, but bar another national.

For instance, nonimmigrants from Chad, Libya and Yemen seeking to enter the United States on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas will be suspended. Iranian citizens seeking entry to the United States under valid student visas (F or M visas) and exchange visas (J) will not be suspended, but will undergo enhanced vetting and screening. Nonimmigrants from North Korea and Syria are banned completely from entry into the United States.

In addition, for Somalian nonimmigrants, there will be increased scrutiny and vetting to determine if any applicant for admission to the United States poses a threat to national security. Venezuelan government officials "involved in screening and vetting procedures" and their immediate family members seeking entry to the United States in B-1, B-2 and B-1/B-2 visa will be suspended. The Proclamation notes that this stems from the Venezuelan government's failure to cooperate with the United States' efforts to gather public-safety and terrorism related information during their review process.

Exceptions to the travel ban include foreign nationals who are lawful permanent residents of the United States ("green card holders") on or after the effective date of the proclamation, any foreign national who has been granted asylum or refugees who have already been admitted to the United States, among others. The proclamation also contains language permitting waivers which might be granted in limited circumstances where denial of entry to the United States would cause undue hardship or entry would not threaten national security and it would be in the national interest of the United States.

The new restrictions enumerated for new countries listed in the proclamation take effect on October 18, 2017. Those citizens from countries previously subject to the order of March 6, 2017 will continue to be subject to the previous order and will be incorporated into the new travel ban, effective on October 18, 2017.

In a related development, the U.S. Supreme Court announced on September 25 that it will not hear oral arguments on the travel ban as previously scheduled for October 10. Solicitor General Noel Francisco filed a letter with the Court "respectfully suggesting" that the justices request supplemental briefs from both sides by October 5, due to the new and updated presidential proclamation. As well, the Solicitor General indicated that the administration was putting into place new restrictions after a global review. Since the new travel ban applies on a tiered and per country basis and is customized individually for each, it is possible that an argument of mootness would be applied to cases still pending in the federal courts.

Employers who might be employing foreign nationals of any of the eight countries enumerated on this proclamation are advised to review the status of such nationals and assure that their travel documents are in order, or assure that any travel undertaken will not bar the employee from future entry to the United States.

Our Immigration practice group will continue to monitor and report on developments in this area.

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