Introduction

On January 31, 2020, President Donald Trump issued a Presidential Proclamation titled “Proclamation on Improving Enhanced Vetting Capabilities and Processes for Detecting Attempted Entry” [PDF version].

The instant proclamation serves as an update to President Trump’s Presidential Proclamation 9645 [see article], wherein he imposed entry restrictions on nationals of seven countries (Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen), commonly known as the “travel ban.” That proclamation followed President Trump’s Executive Order 13780, which set forth the criteria for imposing entry restrictions for vetting purposes. The President’s new proclamation retains the entry restrictions on nationals of the seven countries covered by Proclamation 9645, and adds restrictions to nationals of Burma, Eritrea, Kyrgyzstan, Nigeria, Sudan, and Tanzania.

In this article, we will examine the new “travel ban” and how it affects nationals of Burma, Eritrea, Kyrgyzstan, Nigeria, Sudan, and Tanzania.

Updates

We will provide updates regarding the implementation of the proclamation here as they become available.

Travel Restrictions from Presidential Proclamation 9645

President Trump left in place all of the travel and entry restrictions from Presidential Proclamation 9645, except for those placed on Chad, which had already been lifted [see article]. Please see our chart in our article on Proclamation 9645 for the entry restrictions on nationals of Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen [see section].

New Countries Covered

President Trump imposed entry restrictions on six new countries in addition to the seven countries that were already subject to restrictions. Below, we will examine the restrictions on the new countries.

Burma (also known as Myanmar)

The entry of nationals of Burma as immigrants is suspended. This suspension does not, however, apply to the entry of nationals of Burma as Special Immigrants whose eligibility is based on having provided assistance to the United States Government.

The entry of nationals of Burma as nonimmigrants is not suspended.

Eritrea

The entry of nationals of Eritrea as immigrants is suspended. This suspension does not, however, apply to the entry of nationals of Eritrea as Special Immigrants whose eligibility is based on having provided assistance to the United States Government.

The entry of nationals of Eritrea as nonimmigrants is not suspended.

In September 2017, the U.S. Department of State imposed restrictions on travel visas for nationals of Eritrea. We discuss these restrictions, which are outside the scope of the instant proclamation, in a separate article [see article].

Kyrgyzstan

The entry of nationals of Kyrgyzstan as immigrants is suspended. This suspension does not, however, apply to the entry of nationals of Kyrgyzstan as Special Immigrants whose eligibility is based on having provided assistance to the United States Government.

The entry of nationals of Kyrgyzstan as nonimmigrants is not suspended.

Nigeria

The entry of nationals of Nigeria as immigrants is suspended. This suspension does not, however, apply to the entry of nationals of Nigeria as Special Immigrants whose eligibility is based on having provided assistance to the United States Government.

The entry of nationals of Nigeria as nonimmigrants is not suspended.

Sudan

The entry into the United States of nationals of Sudan as Diversity Immigrants described in INA 203(c) is suspended.

Tanzania

The entry into the United States of nationals of Tanzania as Diversity Immigrants described in INA 203(c) is suspended.

Scope of the Proclamation

Regarding nationals of the six countries covered by the instant Proclamation, a national of one of those six countries is only affected if he or she is (1) outside the United States on the effective date of the proclamation (set at February 21, 2020); (2) does not have a valid visa on the effective date of the proclamation; and (3) does not qualify for a visa or travel document under section 6(d) of Proclamation 9645 (referring to having a visa marked revoked or marked cancelled as a result of Executive Order 13769 of January 27, 2017 [see section]).

The proclamation is slated to take effect on 12:01 AM EST on February 21, 2020, for the six new countries added.

Pertinent to the restrictions on Burma, Eritrea, Kyrgyzstan, and Nigeria, the phrase “Special Immigrants whose eligibility is based on having provided assistance to the United States Government” means aliens described in the following provisions:

101(a)(27)(D) through (G) and (K);
Any alien seeking to enter the United States with a Special Immigrant Visa in the SI or SQ classification; and
Any spouse and children of such individual.

Aliens described in these provisions are not subject to the new entry restrictions.

The President provided that foreign nationals who are subject to entry restrictions under the instant Proclamation or Proclamation 9645 may seek any waiver set forth in Proclamation 9645 for which they may be eligible. We discuss the waiver provision in detail in our article on Proclamation 9645 [see section].

Reassessment

President Trump directed the Secretary of Homeland Security, in consultation with the Secretary of State, to provide a report on October 1, 2020, advising him whether to continue or modify the entry restrictions on the 13 countries now subject. The proclamation itself provides the reasons why the President imposed the entry restrictions that he did. Some of the countries may manage to remove themselves from the entry restrictions by addressing the problems identified in the proclamation. As we noted, Chad was subject to restrictions in one version of the travel ban but had those restrictions lifted in Proclamation 9645. Sudan, which is subject to Diversity Visa restrictions in the current iteration of the travel ban, was subject to restrictions in the original versions before having the restrictions lifted. Thus, it is possible that some of the countries now subject to restrictions may be able to have the restrictions lifted or modified in the future.

New Methodology

The President explained that the Department of Homeland Security has updated its methodology for assessing foreign government cooperation and vetting. The new countries were added to the travel restrictions under the new methodology. Notably, the President acknowledged that Iraq and another “similarly situated” country failed to meet the Department’s benchmarks, but restrictions were not recommended based on a variety of other considerations.

The President explained that he prioritized restricting immigrant travel over nonimmigrant travel because it is more difficult to remove immigrants than nonimmigrants. This decision is reflected in that the restrictions on nationals of the six newly identified countries do not reach entry as nonimmigrants. Some of the countries that have had restrictions since Proclamation 9645 continue to have restrictions on nonimmigrants.

Conclusion

President Trump imposed entry restrictions on nationals of six additional countries to the seven that were already subject to restrictions. Unlike some of the more sweeping prior restrictions, the new entry restrictions only apply to immigrant visas. The waiver provision from Proclamation 9645 remains unchanged.

A foreign national who is or may be subject to the entry restrictions, and nevertheless wishes to obtain an immigrant visa, should consult with an experienced immigration attorney. An experienced attorney will be able to assess whether the foreign national may be eligible for a waiver from the entry restrictions. It is important to reiterate that entry as nonimmigrants from the six newly added countries is not restricted, and that the restrictions on Sudan and Tanzania apply only to Diversity Visas, and not to other types of immigrant visas.

Foreign nationals who are affected by the entry restrictions but intend to eventually seek immigrant status in the United States should monitor the situation. It is possible that the restrictions on some of the affected countries may be lifted or modified later in 2020.

We will continue to update the website with more information on the entry restrictions on 13 countries, commonly called the “travel ban.”