Background and Policy Changes in Sep 24, 2017 Presidential Proclamation on Vetting ("Travel Ban")

• Introduction
• Resources and Materials
• Introduction to the Proclamation
  • Section 1: New Policy
  • Section 1: Results of the Assessment
  • Authorities for Restrictions
  • Section 2: The New Restrictions
  • Section 3: Application, Exemptions, and Waivers (Discussed in Companion Article)
  • Section 4: Modifying and Removing Suspensions and Limitations
  • Section 5: Periodic Reports
  • Section 6: Enforcement (Discussed in Companion Article)
  • Section 7: Effective Dates (Discussed in Companion Article)
• Conclusion

 

Introduction

On September 24, 2017, President Donald Trump issued “Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats.” President Trump's proclamation follows his March 6, 2017 Executive Order titled “Protecting the Nation from Foreign Terrorist Entry into the United States” [PDF version], and more specifically following up on the sections of the Executive Order dealing with the suspension of entry of nationals of six countries [see article] and provisions for enhanced vetting of visa applicants [see article]. Note that the proclamation does not affect the refugee provisions of Executive Order 13780, which remain in effect [see article].

The proclamation explains the results of the Executive Order 13780 regarding the imposition of new enhanced vetting procedures and provides for further improvement to vetting going forward. The proclamation restricts the entry of nationals of eight countries indefinitely, with the specific restrictions varying from country to country. The proclamation also provides for limited waivers from the visa restrictions.

In this article, we will examine the purpose of the proclamation and the new vetting procedures it establishes. To learn about the specific restrictions on entry of nationals of eight countries and the associated waivers exemptions and waivers thereof, please see our companion article on the subject [see article].

Resources and Materials

In the article, we will rely on and refer to the following materials, uploaded for your reference:

Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public Safety Threats [PDF version];
[White House] FAQ: Proclamation on Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats [PDF version];
[DHS] Fact Sheet: The President's Proclamation on Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats [PDF version]; and
[DOS] Presidential Proclamation on Visas [PDF version].

Although we will not rely on them for this article, the following are links to the White House fact sheet on the proclamation [PDF version] and the White House talking points [PDF version].

Introduction to the Proclamation

In Executive Order 13780, President Trump instructed officials in his administration to determine whether the United States needed additional information from specific foreign countries in order to be able to properly vet their nationals seeking visas to enter the United States. He also directed these officials to determine what additional information would be needed if they determined that the information provided by certain countries was inadequate. He noted that this would be the first ever review of its kind conducted by the United States.

In his proclamation, President Trump explained that the Secretary of Homeland Security had “established global requirements for information sharing in support of immigration screening and vetting.” The Secretary of Homeland Security has in turn established and applied criteria based on these requirements to the information-sharing practices of foreign countries. The Secretary of State then “engaged with the countries reviewed in an effort to address deficiencies and achieve improvements.” President Trump noted that this engagement yielded satisfactory results with multiple countries that had been flagged.

However, President Trump stated that the Secretary of Homeland Security and the Secretary of State have determined that a small number of the 200 countries evaluated remain deficient “with respect to their identity-management and information-sharing capabilities, protocols, and practices.” He added that a selection of the deficient countries also have “a significant terrorist presence.”

President Trump noted that several of the countries with remaining inadequacies have “made strides to improve their protocols and procedures.” Others were less cooperative. As we will discuss later in the article [see section], President Trump imposed restrictions on nine countries determined to have remaining inadequacies per the recommendation of the Secretary of Homeland Security and Secretary of State.

Section 1: New Policy

Before examining the specific countries subject to restrictions under President Trump's proclamation, we must first understand the new procedures and policies set forth in the proclamation.

In section 1(b) of the proclamation, President Trump emphasized the important role of the information-sharing and identity-management protocols of foreign governments in enabling the United States to properly vet foreign nationals applying for visas. Accordingly, he proclaimed that it is “the policy of the United States to take all necessary and appropriate steps to encourage foreign governments to improve their information-sharing and identity-management protocols and practices and to regularly share that information with our immigration screening and vetting system.”

In section (c), President Trump discusses the new “baseline” developed by the Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, regarding the information required from foreign governments “to support the United States Government's ability to confirm the identity of individuals seeking entry into the United States as immigrants and nonimmigrants, as well as individuals applying for any other benefit under the immigration laws, and to assess whether they are a security or public safety threat.” Under section (c), President Trump listed the three criteria that form the new baseline:

(i) Identity-management information. Foreign governments must provide the information needed to determine whether individuals from those countries seeking benefits under the U.S. immigration laws are who they claim to be. President Trump explained that this criterion “focuses on the integrity of documents required for travel to the United States.”
(ii) National security and public-safety information. Foreign governments must provide information about whether their nationals seeking entry into the United States pose public safety risks.
(iii) National security and public-safety risk assessment. This criterion deals with conditions within the home country. In this regard, the United States will assess whether the country in question has national security risk indicators. Interestingly, President Trump included “whether [the country] regularly fails to receive its nationals subject to final orders of removal from the United States” as part of this assessment.

In section 1(d) of the proclamation, President Trump explained that the DHS and DOS assessed each country against the new baseline. This assessment focused primarily “on identity management, security and public-safety threats, and national security risks.”

Section 1: Results of the Assessment

In section 1(e), President Trump detailed the result of the DHS's evaluation. The DHS has concluded that 16 countries were “inadequate” based on the benchmarks and 31 countries were “at risk” of becoming inadequate. In section 1(f), President Trump explained that the DOS has conducted a 50-day engagement period with all foreign governments, including those not among the 47 described in section 1(e). He reported that “those engagements yielded significant improvements in many countries.” According to section 1(e), 29 countries provided examples of their official travel documents to the DHS in order to help it combat fraud. 11 countries agreed to share information about known or suspected terrorists.

In section 1(h) of the proclamation, President Trump references the provision of his Executive Order 13780 that directed the Secretary of Homeland Security to submit to him a list of countries recommended for inclusion in a proclamation prohibiting “the entry of appropriate categories of foreign nationals” of those countries on security grounds. On September 15, 2017, the Secretary of Homeland Security submitted a report that included recommended restrictions and limitations on the nationals of seven countries still determined to be inadequate after the 50-day review period. The dual goals of the restrictions are to ensure national security and to encourage the countries to address the inadequacies that led to the restrictions.

In considering the recommendations, President Trump explained in section 1(h)(i) that he has consulted with his appropriate assistants and cabinet members on how to proceed. He considered several factors, including, but not limited to:

Each country's capacity, ability, and willingness to cooperate with identity-management and information-sharing policies;
Each country's risk factors (such as whether it has a significant terrorist presence); and
All foreign policy, national security, and counterterrorism goals.

He also stated that he has considered which restrictions would be most likely to (1) encourage cooperation from affected countries; and (2) protect the United States until the issues are resolved. He took the position that “[t]hese restrictions and limitations are also needed to elicit improved identity-management and information-sharing protocols and practices from foreign governments; and to advance foreign policy, national security, and counterterrorism objectives.”

In section (g) and (h) of the proclamation, President Trump stated that the Secretary of Homeland Security had recommended restrictions and limitations on seven countries due to their inadequate identity-management protocols, information-sharing practices, and risk factors: Chad, Iran, Libya, North Korea, Syria, Venezuela, and Yemen. The Secretary of Homeland Security had also determined that Iraq was “inadequate” as President Trump explains in section (g). However, due to the relationship of the United States government with Iraq, among other factors, the Secretary of Homeland Security recommended that Iraqi nationals “be subject to additional scrutiny” in lieu of restrictions.

In section (h)(ii) of the proclamation, President Trump explains that he accepted the recommendations of the Secretary of Homeland Security. Accordingly, as set forth in sections (h)(ii) and (iii), President Trump restricted the entry of all immigrants from the seven countries recommended for restrictions and adopted “a more tailored approach with respect to nonimmigrants.”

In section (i), President Trump noted that his Executive Order 13780 permitted the Secretary of State, Attorney General, or Secretary of Homeland Security to submit additional countries for restrictions. The Secretary of Homeland Security recommended Somalia for inclusion due to conditions within the country. The President accepted this recommendation.

Authorities for Restrictions

In the introduction to the proclamation, President Trump invoked his authority under the Constitution of the United States and sections 212(f) and 215(a) of the Immigration and Nationality Act (INA) to impose immigration restrictions on seven countries.

Section 212(f) of the INA, codified at 8 U.S.C. 1182(f), permits the President to suspend the entry of any aliens or any class of aliens or impose other restrictions he deems necessary by proclamation if he determines that such entry “would be detrimental to the interests of the United States.” Please see our comprehensive article on section 212(f) to learn more about this broad authority [see article]. President Trump also invoked section 215(a) which similarly gives the President authority to impose limitations and exceptions on the entry and departure of aliens. President Trump has delegated the authority to implement his directive in accord with 3 U.S.C. 301.

Using his authorities under the Constitution foregoing statutes, President Trump stated that “I … hereby find that, absent the measures set forth in this proclamation, the immigrant and nonimmigrant entry into the United States of persons described in section 2 of this proclamation would be detrimental to the interests of the United States, and that their entry should be subject to certain restrictions, limitations, and exceptions.”

Section 2: The New Restrictions

Before examining each country in detail, the following is a useful chart, courtesy of the DOS document on the proclamation, that highlights the restrictions imposed on each country:

Section 2 of the proclamation details the specific restrictions on each country and the reasons for their imposition. As the chart shows, immigrant and diversity visas are barred while the suspension is in effect for all countries except Venezuela. Nonimmigrant restrictions vary by country. However, it is important to note that there are numerous exemptions, waivers, and stipulations that apply in each case. Furthermore, there are distinct effective dates for section 2 of the proclamation. Please see our companion article to learn more about how section 2 of the proclamation works in practice [see article].

We will now examine in brief the proclamation's discussion of each country. Because countries can be removed from the list at a future date, it is worth examining the reasons for their inclusion in considering their prospects for eventual removal. However, please note that President Trump stated in section 1(j) that much of the information that led to his decisions is classified and therefore not discussed in the proclamation.

Chad. In section 2(a), President Trump praised Chad for being an important counterterrorism partner. He also credited Chad for “show[ing] a clear willingness to improve” in areas where it was determined to be deficient. However, the DHS determined that Chad does not adequately share information and “fails to satisfy at least one key risk criterion.” President Trump also explained that “several terrorist groups are active within Chad or in the surrounding region…” For these reasons and until Chad's issues are addressed, President Trump suspended the entry of nationals of Chad as immigrants and as B1, B2, or B1/B2 visitors.
Iran. In section 2(b), President Trump criticized Iran on multiple grounds. He noted its lack of cooperation, that it is the source of terrorist threats, that it fails to satisfy at least one key risk criterion, and that it is recalcitrant in accepting the return of its nationals subject to final orders of removal from the United States. He added that Iran has been designated as a state-sponsor of terrorism. For this reason, President Trump suspended the entry of nationals of Iran as immigrants and as nonimmigrants except under F and M student visas and J exchange visitor visas. However, he provided that Iranians seeking entry as nonimmigrant students or exchange visitors will be subject to enhanced screening and vetting.
Libya. Similarly to Chad, President Trump praised Libya for being a counterterrorism partner in section 2(c). However, he noted several “significant challenges” that still exist. He listed among these challenges information sharing, identity-management protocols, certain risk factors, and significant terrorist presence within the country. Furthermore, President Trump noted that Libya has not been fully cooperative in accepting the return of its nationals subject to final orders of removal from the United States. For these reasons, President Trump suspended the entry into the United States of nationals of Libya as immigrants and as B1, B2, or B1/B2 visitors.
North Korea. In section 2(d), President Trump stated that North Korea does not cooperate with the United States “in any respect” and fails to satisfy all information-sharing requirements. Accordingly, he suspended the entry into the United States of nationals of North Korea as immigrants and nonimmigrants.
Syria. In section 2(e), President Trump criticized Syria for failing to cooperate with the United States in identifying security risks. He added that Syria is the source of “significant terrorist threats” and has been designated by the United States as a state sponsor of terrorism. He noted that Syria also has “significant inadequacies in identity-management protocols.” Accordingly, President Trump suspended the entry into the United States of nationals of Syria as immigrants and nonimmigrants.
Venezuela: In section 2(f), President Trump explained why he was imposing more limited restrictions on Venezuela. He stated that Venezuela has adopted many standards from the DHS baseline. However, he criticized the Venezuelan government for being “uncooperative in verifying whether its citizens pose national security or public safety threats.” He noted Venezuela is deficient in information sharing and not fully cooperative in receiving the return of its nationals subject to final orders of removal from the United States. However, President Trump stated that, notwithstanding the government's deficiencies, the United States has alternative sources for identity verification of Venezuelan nationals. For this reason, President Trump only imposed restrictions on Venezuelan government officials who are responsible for the inadequacies. President Trump suspended the entry of Venezuelan government officials involved in screening and vetting procedures, and their immediate family members, as nonimmigrants on B1, B2, and B1/B2 visas. Furthermore, President Trump determined that nationals of Venezuela who have visas will be subject to additional measures to ensure that their traveler information remains current.
Yemen. President Trump began section 2(g) for praising Yemen for being a valuable counterterrorism partner. However, he noted that Yemen “faces significant identity-management challenges, which are amplified by the notable terrorist presence within its country.” He added that Yemen does not share public-safety and terrorism-related information adequately and fails to satisfy at least one risk criterion. Accordingly, he suspended the entry into the United States of nationals of Yemen as immigrants, and as nonimmigrants on B1, B2, and B1/B2 visas.
Somalia. In section 2(h), President Trump explained that Somalia satisfies the baseline information sharing requirements established by DHS. However, he noted several other factors warrant special restrictions for Somalia. Chief among these issues is the presence of terrorist groups in Somalia and the lack of the central government's control over its territory. Furthermore, President Trump added that the United States does not recognize Somalia's electronic passport. Somalia's myriad issues compromise its ability to share information about its nationals who pose risks to U.S. security. For these reasons, President Trump suspended the entry of nationals of Somalia into the United States as immigrants. While he imposed no specific restrictions on nonimmigrants, he provided that visa adjudications for Somali nationals will be subject to additional scrutiny.

As we noted, nationals of Iraq will be subject to enhanced vetting.

Section 3: Application, Exemptions, and Waivers (Discussed in Companion Article)

Please see the related sections of our article beginning with where the restrictions apply [see section].

Section 4: Modifying and Removing Suspensions and Limitations

In section 4(a) of the proclamation, President Trump directed the Secretary of Homeland Security, in consultation with the Secretary of State, to create a process for the assessment of whether suspensions and limitations should be continued, terminated, modified, or suspended. The process will address if countries have improved their identity-management and information-sharing protocols based on the criteria set forth in the proclamation and by the DHS. 180 days after the issuance of the proclamations, and every 180 days thereafter, the Secretary of Homeland Security, in consultation with other specified officials, will submit a report with recommendations to the President. The report shall include the following (paraphrased):

(i) Which interests of the United States, if any, continue to require the suspension of, or limitations on, the entry of certain classes of nationals suspended or limited under section 2 of the proclamation, and whether the restrictions and limitations should be continued, modified, terminated, or supplemented; and
(ii) Which interests of the United States, if any, require the addition of countries not identified in the proclamation for the suspension of or limitation on the entry of certain classes of nationals of those countries.

Section 4(b) requires the Secretary of State, in consultation with other specified officials, to engage the countries listed in section 2 of the proclamation and any other countries that have information-sharing, identity-management, or other risk factors to the extent that to do so is practicable, appropriate, and consistent with the national interest of the United States.

Under section 4(c), President Trump referenced section 2(f) of Executive Order 13780. This allows the Secretary of Homeland Security, in consultation with other specified officials, to recommend that restrictions be loosened or removed on any country for which he or she determines that restrictions are no longer necessary for the security or welfare of the United States. It also allows the Secretary Homeland Security, Secretary of State, or Attorney General to recommend additional countries for lawful restrictions or limitations. In both cases, the recommendations would be made in light of the baseline discussed in section 1 of the proclamation.

Section 5: Periodic Reports

In section 5(a), President Trump directed the Secretary of Homeland Security, in consultation with specified officials, to submit periodic reports on screening and vetting procedures. The first report must be submitted 180 days after issuance of the proclamation, the second report 270 days after the first report, and subsequent reports on an annual basis.

Section 6: Enforcement (Discussed in Companion Article)

Please see the applicable section of our companion article to learn more [see section].

Section 7: Effective Dates (Discussed in Companion Article)

The proclamation became effective on September 24, 2017, for those countries which were already subject to section 2 of Executive Order 13780 [see article]. The proclamation becomes effective on October 18, 2017, for those from countries that were not covered in section 2 of Executive Order 13780 and for those individuals who were exempt only under the “credible claim of a bona fide relationship with a person or entity in the United States” provision. We discuss the effective dates and what they mean for nationals of the affected countries in our companion article [see section].

Conclusion

President Trump's proclamation builds off his Executive Order 13780 in devising procedures for the enhanced vetting of foreign nationals seeking entry into the United States. Although most of the attention will be focused on the eight countries subject to restrictions, the procedures set forth in the proclamation will have broad general effects on the processing of visa applications and the vetting of applicants. For example, Executive Order 13780 has already been cited in the implementation of new vetting procedures by the DOS and DHS. We will update the site with information about new developments in vetting procedures, country-specific restrictions, and legal proceedings regarding the policy as the news becomes available.

Please see our article on the specific restrictions on the entry of nationals of eight countries set forth in the proclamation [see article].