United States: The New Travel Ban: What Employers and Foreign Nationals Need to Know
• The restrictions affect nationals of Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela and Yemen, unless exempt or granted a waiver. • U.S. lawful permanent residents, dual nationals, and holders of valid U.S. visas are exempt, among others. • Restrictions vary by country. • The restrictions took effect immediately for certain nationals of Iran, Libya, Somalia, Syria and Yemen. All others will be subject to restrictions on October 18, 2017 at 12:01am EDT. They will remain in place indefinitely.
The Trump Administration is imposing new travel restrictions on certain nationals of Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela and Yemen, under a presidential proclamation issued on September 24, 2017. The new restrictions follow a U.S. government review of worldwide visa security measures and the expiration of the Administration's previous travel ban. The following are Fragomen's answers to frequently asked questions about the ban.
1. What types of travel are restricted?
Nationals of the eight designated countries are subject to travel restrictions as outlined below, unless exempt or granted a waiver.
- Chad: No B-1, B-2 or B-1/B-2 visitor visas; no immigrant or diversity lottery visas.
- Iran: No nonimmigrant visas except F and M student visas and J exchange visitor visas; no immigrant or diversity lottery visas.
- Libya : No B-1, B-2 or B-1/B-2 visitor visas; no immigrant or diversity lottery visas.
- North Korea: No nonimmigrant, immigrant or diversity lottery visas.
- Somalia: Nonimmigrant visa applicants subject to heightened scrutiny; no immigrant or diversity visas.
- Syria: No nonimmigrant, immigrant or diversity lottery visas.
- Venezuela : No B-1, B-2 or B-1/B-2 visas for officials of designated Venezuelan government agencies. Other visa holders are subject to verification of traveler information. No restrictions on immigrant or diversity lottery visas.
- Yemen: No B-1, B-2 or B-1/B-2 visitor visas; no immigrant or diversity lottery visas.
Nationals of Iraq are not subject to travel restrictions, but the Department of Homeland Security recommends that they be subject to additional scrutiny when applying for U.S. visas and seeking admission to the United States. Sudan has been removed from the list of countries subject to restrictions, but Sudanese nationals are likely to be subject to heightened scrutiny.
2. When will the restrictions take effect?
The travel restrictions are being phased in as follows: Effective September 24, 2017 at 3:30pm EDT:
- Nationals of Iran, Libya, Somalia, Syria and Yemen are subject to restrictions if they were covered by the previous travel ban, unless they have a bona fide relationship to a person or entity in the United States, are otherwise eligible for an exemption, or are granted a waiver.
- Sudanese nationals are no longer subject to restrictions.
Effective October 18, 2017 at 12:01am EDT:
- Nationals of all eight countries are subject to restrictions, unless exempt or granted a waiver.
- Nationals of Iran, Libya, Somalia, Syria and Yemen will no longer be eligible for an exemption based on a bona fide relationship to a person or entity in the United States.
- Visa appointments will not be canceled for restricted foreign nationals. During interviews, consular officers will determine whether restricted applicants qualify for an exemption or waiver.
3. Which foreign nationals are subject to the travel restrictions? The suspensions and limitations on entry apply to nationals of restricted countries who:
- Are outside the United States on the applicable effective date;
- Do not have a valid visa on the applicable effective date;
- Do not qualify for a visa or other valid travel document under provisions for persons whose visa or travel document was marked canceled or revoked pursuant to the Administration's January 27, 2017 travel ban executive order; and
- Do not qualify for an exemption or receive a waiver.
4. Who is exempt from the travel restrictions? The following classes of foreign nationals are not subject to the travel restrictions:
- U.S. lawful permanent residents;
- Dual nationals traveling on a passport from a non-restricted country;
- Foreign nationals who were in the United States on the applicable effective date, regardless of their immigration status;
- Foreign nationals who have a valid visa on the applicable effective date;
- Foreign nationals admitted or paroled into the United States on or after the applicable effective date;
- Any foreign national who has a document other than a visa (such as a transportation letter, boarding foil, or advance parole document) that is valid on the applicable effective date or issued thereafter, that permits them to travel to the U.S. and seek entry or admission;
- Foreign nationals traveling on a diplomatic/diplomatic-type visa, NATO, C-2, G-1, G-2, G-3 or G-4 visa (except certain Venezuelan government officials and their family members travelling on diplomatic type B-1, B-2, or B1/B2 visas);
- Any foreign national who has been granted asylum by the United States;
- Any refugee who has been admitted to the United States; and
- Any individual who has been granted withholding of removal, advance parole or protection under the Convention Against Torture.
5. Are waivers of the restrictions available? The Departments of State and Homeland Security have the discretion to grant waivers of the travel restrictions on case-by-case basis. To be eligible for a waiver, a foreign national must demonstrate that he or she would suffer undue hardship if denied entry, and that his or her entry would not pose a threat to U.S. national security or public safety and would be in U.S. national interest. The presidential proclamation suggests that a waiver may be appropriate for certain classes of foreign national, including:
- Canadian landed immigrants applying for a visa in Canada;
- Persons with significant business or professional obligations in the United States or with previously established significant contacts;
- Nonimmigrants previously admitted to the United States for a continuous period of work, study or another long-term activity who are seeking to resume that activity;
- U.S. government-sponsored J-1 exchange visitors;
- Foreign nationals seeking to enter the United States to visit or reside with a close family member (such as a spouse, child or parent) who is a U.S. citizen, lawful permanent resident or nonimmigrant, if denial of entry would cause undue hardship to the traveler;
- Infants, young children (including adoptees), individuals needing urgent medical care and others with special circumstances justifying a waiver;
- Persons traveling for purposes related to a qualifying international organization or for meetings or business with the U.S. government; and
- Persons who are or have been employed by the U.S. government and can document "faithful and valuable service."
Waivers are highly discretionary and subject to strict eligibility criteria. As such, they may be difficult to obtain.
6. How long will the restrictions be in effect? Will other countries be affected?
The restrictions will be in place indefinitely. The Departments of State and Homeland Security will periodically review each restricted country to determine whether the travel limitations should be continued, modified, or terminated. Other countries may be subject to travel restrictions in the future.
7. How does the new proclamation affect the Supreme Court travel ban case?
The Supreme Court was set to hear oral arguments on the constitutionality of the Trump Administration's previous travel ban on October 10. In light of the new proclamation, the Court has asked the parties to submit briefs on the effect of the new proclamation and whether it renders the pending cases moot. The parties have until October 5 to submit their briefs. Oral argument has been postponed until further orders of the Court. This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.