On September 24, 2017, the White House issued Presidential Proclamation 9645, establishing visa and travel restrictions for nationals of Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela and Yemen (“Proclamation”). According to the Proclamation, the Trump Administration conducted a review of information and documentation practices of a number of foreign countries to assess the potential risk posed by their nationals who seek to enter the U.S. Unlike the previously issued Executive Orders relating to temporary travel restrictions, this Proclamation established restrictions of indefinite duration, subject to a review every 180 days to determine if any of them can be removed or modified. The Proclamation was expected to go into effect on October 18, 2017; however, it was blocked by two District Court judges on October 17, 2017, just hours before it was due to take effect.
What is the current state of affairs as of the publication date of this article?
On October 17, 2017, U.S. District Court Judge Derrick Watson in Hawaii issued a nationwide temporary restraining order blocking the majority of the travel restrictions set forth in the Proclamation. Also on October 17, U.S. District Court Judge Theodore Chuang in Maryland issued a nationwide preliminary injunction against the Proclamation. As a result of the preliminary injunction and restraining order, nationals of Chad, Iran, Libya, Syria, Yemen and Somalia will not be restricted from traveling to the United States under the proclamation. However, all immigrants and nonimmigrants from North Korea, as well as certain government officials and their family members from Venezuela traveling on business or tourist visas (B-1/B-2), will continue to be restricted from travel to the U.S. pursuant to the presidential proclamation. The U.S. Department of State website has confirmed that, as of the date of this article, it is complying with the restraining order and injunction.
As developments in this area take place quickly and sometimes without significant media attention, it is important for potentially affected individuals to check with immigration counsel before making any international travel plans. The above injunctions are only preliminary and can potentially be lifted in the future, allowing the travel restrictions to proceed full-force. We provide a discussion below of the full provisions of the Proclamation.
What are the country-specific restrictions in the Proclamation?
The Proclamation seeks to impose country-specific restrictions as follows:
- Chad: Entry of non-immigrants on B-1 and B-2 visitor visas suspended; entry of immigrants suspended.
- Iran: Suspends the entry of immigrants and all nonimmigrants, except F (student), M (vocational student) and J (exchange visitor) visas, though they will be subject to enhanced screening.
- Libya: Suspends the entry of immigrants and temporary visitors on business or tourist visas (B-1/B-2).
- North Korea: Suspends the entry of all immigrants and nonimmigrants.
- Somalia: Suspends the entry of immigrants, and requires enhanced screening of all nonimmigrants.
- Syria: Suspends the entry of all immigrants and nonimmigrants.
- Venezuela: Suspends the entry of certain government officials and their family members on business or tourist visas (B-1/B-2). Immigrant entry not suspended.
- Yemen: Suspends the entry of immigrants and temporary visitors on business or tourist visas (B-1/B-2).
- Iraq: At this time, there are no restrictions or ban, but nationals of Iraq will be subject to additional screening measures.
Who is exempt?
The travel restrictions in the proclamation do not apply to:
- Lawful permanent residents (LPR);
- Foreign nationals who are admitted to or paroled into the U.S. on or after the applicable effective date;
- Foreign nationals who have a document other than a visa (e.g., transportation letter, boarding foil, advance parole document) valid on the applicable effective date or issued on any date thereafter;
- Dual nationals of a designated country who are traveling on a passport issued by a non- designated country;
- Foreign nationals traveling on diplomatic visas, NATO visas, C-2/U.N. visas, or G-1, G- 2, G-3, or G-4 visa; or
- Foreign nationals who have been granted asylum in the U.S.; refugees who have been admitted to the U.S.; or individuals who have been granted withholding of removal, advance parole or protection under the Convention Against Torture.
What waivers are available?
A waiver may be granted only if a foreign national demonstrates to the consular officer’s or CBP official’s satisfaction that:
- Denying entry would cause the foreign national undue hardship;
- Entry would not pose a threat to the national security or public safety of the U.S.; and
- Entry would be in the national interest.
- The Secretaries of State and Homeland Security shall adopt guidance addressing the circumstances in which waivers may be appropriate.
- A waiver issued by a consular officer shall be valid for both the issuance of the visa and for any subsequent entry on that visa.
- Waivers may not be granted categorically but may be appropriate in the following situations:
- The foreign national has previously been admitted to the U.S. for a continuous period of work, study, or other long-term activity, is outside the U.S. on the applicable effective date, seeks to reenter the U.S. to resume that activity and the denial of reentry would impair that activity;
- The foreign national has previously established significant contacts with the U.S. but is outside the U.S. on the applicable effective date for work, study or other lawful activity;
- The foreign national seeks to enter the U.S. for significant business or professional obligations and the denial of entry would impair those obligations;
- The foreign national seeks to enter the U.S. to visit or reside with a close family member (e.g., a spouse, child, or parent) who is a U.S. citizen (USC), LPR or lawful nonimmigrant and the denial of entry would cause undue hardship;
- The foreign national is an infant, a young child or adoptee, an individual needing urgent medical care or someone whose entry is otherwise justified by special circumstances;
- The foreign national can document that he or she has provided faithful and valuable service to the U.S. Government;
- The foreign national is traveling for purposes related to an international organization designated under the International Organizations Immunities Act (IOIA), traveling for purposes of conducting meetings or business with the U.S. Government or traveling to conduct business on behalf of an international organization not designated under the IOIA;
- The foreign national is a Canadian permanent resident who applies for a visa at a location within Canada;
- The foreign national is traveling as a U.S. Government-sponsored exchange visitor; or
- The foreign national is traveling to the U.S. at the request of a U.S. Government department or agency, for legitimate law enforcement, foreign policy or national security purposes.
As discussed above, developments in this area happen quickly and it is important not to rely on outdated information when planning international travel for individuals affected by the Proclamation. Please check with immigration counsel before traveling internationally.
UPDATES AFTER ARTICLE PUBLICATION:
On Monday, November 13, 2017, the U.S. Court of Appeals for the Ninth Circuit issued an order staying the U.S. District Court for the District of Hawaii’s October 20, 2017 preliminary injunction against entry restrictions on nationals of Chad, Iran, Libya, Syria, Somalia, and Yemen, except as to “foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.” The Ninth Circuit confirmed that a qualifying family relationship includes grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins. As for entities, the Ninth Circuit stated that the relationship must be “formal, documented, and formed in the ordinary course,” and not formed for the purpose of evading President Trump’s September 24, 2017 Presidential Proclamation. In light of the Ninth Circuit’s ruling, nationals of Chad, Iran, Libya, Syria, Somalia, and Yemen who do not have a credible claim of a bona fide relationship with a person or entity in the United States are subject to the applicable travel restrictions under the September 24, 2017 Presidential Proclamation. The Ninth Circuit’s ruling did not affect Sections (d) and (f) of the Presidential Proclamation, thus nationals from North Korea and certain nationals of Venezuela continue to be subject to the travel restrictions set forth in the Proclamation.
On November 17, 2017, the U.S. Department of State (DOS) issued guidance providing additional clarification regarding the implementation of the September 24, 2017 Presidential Proclamation following the Ninth Circuit’s November 13, 2017, order. Pursuant to the DOS guidance, any visa applicant who is a national of Chad, Iran, Libya, Syria, Somalia, and Yemen who lacks a credible claim of a bona fide relationship with a person or entity in the United States, if found otherwise eligible for a visa, will be denied a visa under the Presidential Proclamation, unless the foreign national is exempt or qualifies for a waiver under the Proclamation. The DOS guidance further provides that if the requirements for a particular visa classification include that the applicant have a bona fide relationship with a person or entity in the United States, then applicants qualifying for visas in those classifications are exempt from the Proclamation, based on the Ninth Circuit’s order.