- Updates on Litigation
- Resources and Materials
December 11, 2017 Update: On December 8, 2017, the U.S. Department of State (DOS) announced that it is fully implementing President Donald Trump's September 24, 2017, Presidential Proclamation 9645 [PDF version]. This announcement came in light of the Supreme Court of the United States staying injunctions against certain portions of the Proclamation on December 4, 2017 (see previous update). The DOS reiterated that “[n]o visas will be revoked under the Proclamation…”
December 4, 2017 Update: On December 4, 2017, the Supreme Court of the United States stayed both the Fourth and Ninth Circuit injunctions pending disposition of both of the Government's appeals in the travel proclamation cases. You can see the decisions staying the Fourth [PDF version] and Ninth [PDF version] Circuit injunctions here. Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented from the decision to grant the Government's motion in both instances. The effect of this decision is that the travel restrictions in the September 24, 2017 proclamation will be permitted to take effect in full pending decisions by the Fourth and Ninth Circuits on the case. Furthermore, if the Fourth or Ninth Circuits block parts of the travel restrictions, the stay will remain in place if the Supreme Court grants the Government's petition for certiorari on appeal from one or both decisions. The Ninth Circuit will hear oral arguments on December 6, 2017, and the Fourth Circuit will hear oral arguments on December 8, 2017. We will update the site with more information on the travel restrictions as it becomes available.
November 13, 2018 Update: On November 13, 2017, the United States Court of Appeals for the Ninth Circuit narrowed the scope of the Hawaii District Court injunction against certain portions of President Trump's Presidential Proclamation restricting travels to individuals from seven countries (North Korea and Venezuela unaffected by the injunction). The injunction now only prevents enforcement of the entry and visa restrictions against individuals with a “credible bona fide relationship to a person or entity in the United States.” A relationship to a “person” is defined as a “close familial relationship,” which includes “grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins.” A qualifying relationship to an entity “must be formal, documented, and formed in the ordinary course, rather than for purpose of evading [the Proclamation].” The Ninth Circuit's narrowing of the injunction brings it into accord with the separate injunction issued by the United States District Court for the District of Maryland. The Government has indicated that it will begin enforcing the travel restrictions in a manner consistent with court orders. Please see our full article to learn more [see article].
October 19, 2017 Update: On October 17, 2017, the United States District Court for the District of Hawaii and the United States District Court for the District of Maryland each blocked parts of President Trump's September 24, 2017 proclamation. The Hawaii District Court issued a temporary restraining order against the travel restrictions for all countries except North Korea and Venezuela. The Maryland District Court issued a temporary restraining order against the same provisions of the Proclamation. We will update the website with more information as the litigation moves through the courts. For the time being, normal processing of visas will resume for nationals of Chad, Iran, Libya, Syria, Yemen, and Somalia.
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 its sections on 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] as of the date of its issuance.
In addition to describing new vetting procedures and setting forth processes for continuing to develop vetting procedures, the proclamation suspends to varying degrees the entry of nationals of eight countries. The specific restrictions vary from country to country. In addition to these restrictions, the proclamation provides for certain exemptions and waivers.
In this article, we will examine the provisions of the proclamation suspending the entry of certain nationals of eight countries, discuss who is subject, and explain the waiver provisions and other exemptions. To learn about the general provisions of the proclamation and the detailed reasons for why the eight countries were singled out for restrictions, please see our companion article on the subject [see article].
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].
President Trump invoked sections 212(f) and 215(a) of the Immigration and Nationality Act (INA) in addition to his Constitutional authority as President to impose the country-specific restrictions on entry. Section 212(f) allows the President to suspend the entry of any alien or aliens upon his proclamation that the entry of such alien or aliens would be detrimental to the interests of the United States. We discuss section 212(f) in detail in a comprehensive article [see article]. Please see the relevant section of our companion article to learn about his authorities in more detail [see section].
President Trump imposed visa restrictions on the following eight countries: Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen. The restrictions are detailed in section 2 of the proclamation. In its document explaining the new proclamation, the Department of State (DOS) included a very useful chart outlining the nonimmigrant visa and immigrant visa restrictions on nationals of each of these eight countries:
|Country||Nonimmigrant Visas||Immigrant and Diversity Visas|
|Chad||No B-1, B-2, and B-1/B-2 visas||No immigrant or diversity visas|
|Iran||No nonimmigrant visas except F, M, and J student visas||No immigrant or diversity visas|
|Libya||No B-1, B-2, and B-1/B-2 visas||No immigrant or diversity visas|
|North Korea||No nonimmigrant visas||No immigrant or diversity visas|
|Syria||No nonimmigrant visas||No immigrant or diversity visas|
No B-1, B-2 or B-1/B-2 visas of any kind for officials of the following government agencies Ministry of Interior, Justice, and Peace; the Administrative Service of Identification, Migration, and Immigration; the Corps of Scientific Investigations, Judicial and Criminal; the Bolivarian Intelligence Service; and the People's Power Ministry of Foreign Affairs, and their immediate family members.
|Yemen||No B-1, B-2, and B-1/B-2 visas||No immigrant or diversity visas|
|Somalia||No immigrant or diversity visas|
For each country except Venezuela, immigrant and diversity visas are barred while the suspension is in effect. The nonimmigrant visa restrictions vary more widely. The visa restrictions for Venezuela only apply to B1, B2, and B1/B2 visas for certain government officials and their immediate family members. The restrictions only apply to B1, B2, and B1/B2 visas for nationals of Chad, Libya, and Yemen. All nonimmigrant visas for nationals of Iran except for F1 and M1 student visas and J1 exchange visitor visas are barred. Furthermore, the proclamation stipulates that Iranian nationals will be subject to high scrutiny for F1, M1, and J1 applications. All nonimmigrant visas are barred for nationals of North Korea and Syria. Interestingly, while the proclamation calls for close scrutiny of Somali applicants for nonimmigrant visas, no nonimmigrant visa categories are actually suspended.
Iraq was not included among the eight countries for which visa restrictions apply. However, Iraqi nationals will continue to be subject to closer vetting as a continuation of the policy from Executive Order 13780.
Sudan was included as one of the countries subject to a visa suspension under Executive Order 13780. Sudan was not included in the proclamation. Accordingly, all visa restrictions for Sudanese nationals expired on September 24, 2017.
The proclamation includes two distinct effective dates.
First, the restrictions and limitations in section 2 of the proclamation took effect at 3:30 PM (EDT) on September 24, 2017, for foreign nationals who:
- (i) [W]ere subject to entry restrictions under section 2 of Executive Order 13780 [see article], or would have been subject to the restrictions but for section 3 of that Executive Order; and
- (ii) [L]ack a credible claim of a bona fide relationship with a person or entity in the United States.
Simply put, individuals who were subject to Executive Order 13780 as of 3:30 PM (EDT) on September 24, 2017, are immediately subject to the proclamation. The proclamation essentially extends the visa restrictions on individuals who were already subject to restrictions under the previous Order. Individuals who would have been subject to the previous order but for a credible claim of a bona fide relationship with a person or entity in the United States are not subject to the September 24 effective date. As we noted in the previous section, nationals of Sudan who were subject to the restrictions of Executive Order 13780 had those restrictions lifted on September 24.
For other individuals subject to the proclamation, the effective date of the proclamation will be 12:01 (EDT) on October 18, 2017. This includes:
- (i) [Nationals of] Iran, Libya, Syria, Yemen, and Somalia who have a credible claim of a bona fide relationship with a person or entity in the United States; and
- (ii) [Nationals of] Chad, North Korea, and Venezuela.
The second effective date applies as well to individuals who (1) were not subject or nonimmigrant visa who were otherwise exempt from section 2 of Executive Order 13780; and (2) who are subject under the provisions of the instant proclamation. In an obvious point, the October 18 effective date applies to nationals of Chad, North Korea, and Venezuela because these countries were not included in Executive Order 13780. In its decision agreeing to hear the legal challenges to Executive Order 13780, the Supreme Court held that affected individuals who had a credible claim of a bona fide relationship with a person or entity in the United States were exempt from the restrictions pending the Court's consideration of the case [see article]. The Supreme Court recently weighed in on a Ninth Circuit decision regarding the scope of the injunction [see blog].
President Trump has taken the position that the bona fide relationship exemption will not apply to individuals subject to the proclamation as of October 18, 2017. This means, assuming the proclamation takes effect as planned; an individual who was eligible for a visa under the bona fide relationship exemption would no longer be eligible for an exemption on that basis after October 18. As we will examine in the next sections, however, the individual may be exempt on other grounds or otherwise eligible for a waiver.
It is worth noting that the proclamation may be subject to litigation prior to the October 18 effective date. Because it is impossible to say for sure what may happen in the courts, the issue bears watching as the effective date approaches.
In section 3(a), President Trump provided that the restrictions in section 2 will only apply to foreign nationals of the designated countries who (paraphrased):
- (i) Are outside the United States on the applicable effective date;
- (ii) Do not have a valid visa on the applicable effective date; and
- (iii) Qualify for a visa or other travel document as an individual whose visa was marked revoked or cancelled as a result of Executive Order 13769 of January 27, 2017 (the first version of the travel restrictions).
In most cases, only affected nationals of the eight countries who are both outside of the United States on the applicable effective date and who lack a valid visa on the applicable effective date will be subject to the provisions of the proclamation. Regarding section 3(a)(ii), section 6(c) of the proclamation makes explicit that no valid visas issued before the applicable effective date will be revoked as a result of the proclamation. This means, for example, that an individual from an affected country on an F1 student visa who is abroad on the applicable effective date would be permitted to return on his or her F1 visa subject to the normal rules and regulations.
Section 3(a)(iii) references section 6(d) of the proclamation. Any individual whose visa was revoked or marked cancelled solely as a result of the January 27, 2017 Executive Order 13769 is permitted to travel to the United States in order to seek entry under the terms and conditions of the visa that was marked revoked or cancelled. An individual who believes that he or she may be eligible to seek entry under the terms of a visa revoked or cancelled solely on account of Executive Order 13769 should consult with an experienced immigration attorney for guidance.
Under section 3(b), the restrictions in section 2 of the proclamation shall not apply to (paraphrased):
- (i) Lawful permanent residents of the United States;
- (ii) Any foreign national who is admitted to or paroled into the United States on or after the applicable effective date of the proclamation;
- (iii) Any foreign national who has a document other than a visa (e.g., a transportation letter, an appropriate boarding foil, or an advance parole document) that permits him or her to travel to the United States and seek admission and that is either valid on the applicable effective date under section 7 of the proclamation or that is issued on any date thereafter;
- (iv) Any dual national of a country in section 2 who is traveling on a passport issued by a non-designated country;
- (v) Any foreign national who is traveling on a diplomatic or diplomatic-type visa, NATO visa, C2 visa for travel to the United Nations, or G1, G2, G4, or G4 visa; or
- (vi) Any foreign national who has been granted asylum, any refugee who has already been admitted, or any individual who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture (CAT).
The above cases specify situations in which nationals of the eight countries who would otherwise be subject to section 2 of the proclamation are exempt. Most notably, it exempts permanent residents and individuals already admitted or paroled into the United States as of the effective date of the proclamation. It exempts individuals who are otherwise permitted to enter or travel to the United States after section 2 of the proclamation takes effect. Diplomats, individuals who have been granted asylum, refugees who have been admitted, and individuals who have been granted withholding of removal, advance parole, or CAT protection are exempt.
The dual national exemption is worth noting. A dual national of one of the eight countries who would otherwise be subject to section 2 of the proclamation is exempt if he or she is traveling on the passport of the non-affected country. To use an example, a dual national of France and Syria would be exempt from section 2 of the proclamation if he or she was traveling on a French passport. However, he or she would be subject if traveling on a Syrian passport.
Regarding the exemptions for diplomatic and diplomatic-type visas, the DOS noted that those Venezuelan government officials (and family members) who are subject to section 2 will be barred from traveling on diplomatic-type B1, B2, or B1/B2 visas unless otherwise exempt.
Waivers are relevant only to those individuals who are (1) subject to the restrictions in section 2 of the proclamation; and (2) are not covered by any of the exemptions.
Section 3(c) sets forth limited waivers of section 2 of the proclamation for aliens who are subject to its provisions. Waivers may only be granted on a case-by-case basis. This means that waivers will not be granted by class but rather based on an individualized assessment of each application.
Under section 3(c)(i), a consular officer or an officer of the U.S. Customs and Border Protection (CBP) may grant a waiver if it is determined that all of the following conditions are met (paraphrased):
- A. The denial of entry would cause the foreign national undue hardship;
- B. The entry of the foreign national would not pose a threat to the national security or public safety of the United States; and
- C. The entry of the foreign national would be in the national interest of the United States.
If any one of these conditions is not met, a waiver will not be granted. Whether the conditions are met will depend on a case-specific analysis by the consular officer or officer of the U.S. Customs and Border Protection (CBP) considering the waiver application. The burden rests with the waiver applicant to demonstrate that all three conditions attach.
In section 3(c)(ii), President Trump instructed the Secretary of State and Secretary of Homeland Security to issue guidance for implementing the waiver provisions. Specifically, he instructed them to devise guidance on each of the three necessary waiver criteria.
In section 3(c)(iv), President Trump detailed situations in which a case-specific waiver may be appropriate, subject to the limitations of section 3(c)(i). President Trump reiterated that each waiver must be considered on a case-by-case basis. Accordingly, none of these scenarios provide for situations in which a waiver would be automatically granted. Rather, the scenarios serve as examples of situations in which a waiver may be appropriate after a full analysis of the facts of the specific case. The scenarios are paraphrased as follows.
- A. A foreign national who is outside of the United States on the applicable effective date but who has previously been admitted to the United States for a continuous period of work, study, or other long-term activity, seeks reentry into the United States to resume the activity and establishes that the denial of reentry would impair the activity.
- B. A foreign national who has previously established significant contacts with the United States but is outside of the United States on the applicable effective date for work, study, or other lawful activity.
- C. A foreign national seeks to enter the United States for significant business or professional obligations and the denial of entry would impair those obligations.
- D. A foreign national seeks to enter the United States to reside with a close U.S. citizen, lawful permanent resident, or nonimmigrant (admitted on a valid visa) family member (e.g., spouse, child, or parent), and the denial of the visa would cause the foreign national undue hardship.
- E. The foreign nation is an infant, young child, adoptee, individual seeking medical care, or individual whose entry is otherwise justified due to special case-specific circumstances.
- F. The foreign national has been employed by or on behalf of the United States Government (or is an eligible dependent thereof) and the foreign national can document that he or she has provided faithful and valuable service to the United States Government.
- G. The foreign national is traveling for purposes related to an international organization designated under the International Organizations Immunities Act (IOIA), 22 U.S.C. 288 et seq., and is traveling for purposes of conducting meetings or business with the United States Government, or traveling in order to conduct business on behalf of an international organization that is not designated under the IOIA.
- H. The foreign national is a permanent resident of Canada who applies for a visa from within Canada.
- I. The foreign national is traveling as a United States Government-sponsored exchange visitor; or
- J. The foreign national is traveling to the United States at the request of a United States Government department of agency for legitimate law enforcement, foreign policy, or national security purposes.
The DOS provided extra guidance on two points in its document summarizing the proclamation.
Regarding permanent residents of Canada applying for a visa from within Canada, the DOS explained that this situation would not constitute an automatic waiver. However, the DOS stated that a consular officer would carefully review the case to determine first whether the applicant applying from Canada is affected by section 2 of the proclamation, and if so whether he or she qualifies for an exemption or waiver.
Regarding applicants in need of urgent medical care, the DOS stated that such applicants may be eligible for an exemption or a waiver. The DOS recommended that such applicants should disclose during the visa interview “any information that may qualify [him or her] for a waiver.” The DOS noted that a medical emergency is one situation in which a waiver may be appropriate.
In section 6(b), President Trump directed the Secretary of State and the Secretary of Homeland Security to comply with all applicable laws and regulations in enforcing the proclamation. This includes, specifically, providing an opportunity for individuals to enter the United States based on a credible claim of fear of persecution or torture.
Section 6(e) makes clear that the proclamation will not apply to an individual who has already been granted asylum, to a refugee who has already been admitted, or to an individual who has been granted withholding of removal or protection under the Convention Against Torture. Furthermore, the proclamation will not prevent individuals from seeking any of those forms of relief, consistent with the laws of the United States.
In its summary of the proclamation, the DOS stated that it will not cancel previously scheduled visa appointments. If an individual who may be subject to visa restrictions believes that he or she may be eligible for a waiver or exemption, the individual should disclose this information during the interview.
fAs we have discussed, the credible claim of a bona fide relationship to a U.S. person or entity is effective until the October 18, 2017 effective date. Furthermore, this issue may be subject to litigation prior to October 18, 2017. We discuss the current exemption in detail in a separate article [see article].
In section 8 of the proclamation, President Trump directed that if any provision of the proclamation is held to be invalid, the other provisions of the proclamation shall not be affected. If any provision is held to be invalid due to the lack of certain procedural requirements, relevant officials are directed to implement those procedural requirements to conform with the law and any applicable court orders.
In short, this provision was included to ensure that if courts temporarily invalidate any provisions of the proclamation the unaffected provisions are enforced to the greatest extent possible.
The travel restrictions in President Trump's September 24 proclamation follow the expiration of the travel restrictions in his Executive Order 13780. Five of the six countries included in Executive Order 13780 remain affected to varying degrees. Furthermore, Chad, North Korea, and Venezuela were added to the new proclamation. An individual who is unsure how the proclamation may affect him or her should consult with an experienced immigration attorney immediately for case-specific guidance.
Because of the likelihood of legal challenges to the proclamation, including the possibility that the Supreme Court will soon address the issue after being briefed by the Government and the challengers to Executive Order 13780, it remains important for individuals who may be affected to stay abreast of new developments. We will update the website with new information as it becomes available.
To learn about the broader directives of the proclamation and why each country was selected for visa restrictions, please see our related article on the subjects [see article].