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September 2018 Immigration Analysis - Travel Ban - September 20, 2018

We knew the interpretation of the immigration laws would shift with the current Administration. The travel ban and other executive orders issued soon after the 2016 election signaled the direction immigration policy would take.


The immigration process is becoming more challenging and being informed about the current landscape will help us navigate it together. Over the next week, we will be posting updates about various aspects of immigration law that impact individuals and employers alike - the travel ban, advance parole, deference to prior determinations, denials, unlawful presence, and premium processing for H-1Bs.


Please note:  This is not legal advice and should not be relied upon to make decisions about your immigration process.


Travel Ban

After national protests and litigation sparked by two preceding Executive Orders banning nationals from certain countries entering the U.S., Presidential Proclamation 9645 took effect on September 24, 2017 (“Travel Ban 3.0”). The U.S. Supreme Court, in Trump V. Hawaii, decided that the President had the authority to impose the ban, and so it stands, limiting immigration from the following countries:

  • Iran: People entering as immigrants and nonimmigrants (i.e., those entering for temporary purposes) except students using F, J or M visas.
  • Libya: People entering as immigrants and B-1, B-2 and B-1/B-2 visas.
  • North Korea: All entries.
  • Syria: All entries.
  • Venezuela: Certain public officials entering on B-1, B-2 and B-1/B-2 visas.
  • Yemen: People entering as immigrants and B-1, B-2 and B-1/B-2 visas.
  • Somalia: People entering as immigrants.

Chad was originally covered by the ban, but was removed in a Presidential proclamation in April 2018.


In other words, people on the above lists may not enter the U.S. (or be issued a visa) unless a waiver is granted, or an exception applies.  People from the seven countries may enter in a way not prohibited if the prohibition is limited to certain types of entries.  For example, a person from Iran theoretically could obtain an F visa and enter the U.S.  However, visa applications from the seven countries will be strictly scrutinized.


The ban does not apply to people who:

  • Held lawful permanent residence on the effective date;
  • Were admitted to or paroled into the U.S. on or after the effective date;
  • Had a valid visa or qualified for a reinstated visa or other travel document that was revoked under Executive Order 13769 (the first Travel Ban) on the effective date.
  • Are in possession of another type of entry document, such as a transportation letter, an appropriate boarding foil, or an advance parole document valid on the effective date or issued thereafter;
  • Have dual nationality, one nation of which is not listed in the ban, if traveling on a passport issued from the non-banned country;
  • Are 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;
  • Have been granted asylum, are refugees already admitted or have been granted withholding of removal, advance parole, or protection under the Convention Against Torture.

           

Waivers are available on a case-by-case basis consistent with the purpose of the ban (ostensibly national protection from terrorism) if the person seeking entry can prove:

  • Denying entry would cause undue hardship to the person seeking to enter;
  • The entry would not pose a threat to national security or public safety;
  • The entry would be in the national interest.

Examples of waivers that could be granted include a person:

  • who has been admitted for a continuous period of work, study, or other long-term activity, and was outside the United States on the effective date seeking to reenter to resume that activity, and the denial of reentry would impair that activity;
  • who has established significant contacts with the United States but was abroad on the applicable effective date for work, study, or other lawful activity;
  • seeking to enter for significant business or professional obligations and the denial of entry would impair those obligations;
  • seeking to enter the United States to visit or reside with a close family member (e.g., a spouse, child, or parent) who is a U.S. citizen, lawful permanent resident, or alien lawfully admitted on a valid nonimmigrant visa, and the denial of entry would cause the person seeking to enter undue hardship;
  • who is an infant, a young child or adoptee, a person needing urgent medical care, or whose entry is otherwise justified by the special circumstances;
  • who 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 faithful and valuable service;
  • 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;
  • who is a Canadian permanent resident who applies for a visa at a location within Canada;
  • traveling as a U.S. government sponsored exchange visitor (J-1);
  • seeking to enter at the request of a U.S. government department or agency, for legitimate law enforcement, foreign policy, or national security purposes.

Despite this long list of examples, only approximately 2% of waivers filed have been “cleared” to date (and even fewer people have been issued visas).  Many are stuck in “administrative processing” and some have been denied.


Before assuming that a person is banned from entry, careful consideration of the person’s “nationality" (as defined the Immigration & Nationality Act §101(a)(21)) or whether the person may have dual nationality should be made. Some are advising that a second nationality can be gained from certain countries that confer citizenship without long residence, often through payment of a substantial fee.  Caution should be exercised as it is possible this type of citizenship could be interpreted not to be “nationality” because citizenship and nationality are not equivalent.


Also, the applicability of the ban could depend on the effective date.  Because of litigation, some choice is available regarding the effective date that may be used. The Department of State is using is December 8, 2017, the latest possible effective date, but the effective date could be earlier depending on the situation.  If a person had a valid visa or other travel document on an earlier effective date, the ban may not apply. Consulting with a qualified immigration attorney is advised. 




Davis Brown Law Firm blogs, legal updates, and other content are for educational and informational purposes only. This is not legal advice and it does not create an attorney/client relationship between Davis Brown and readers. Each circumstance is different; readers should consult an attorney to understand how this content relates to their personal situation. You should not use Davis Brown blogs or content as a substitute for legal advice from a licensed attorney in your state. Reproduction of Davis Brown content without written consent is prohibited.