12.6.17

The President’s third version of the Travel Ban (a Proclamation dated September 24, 2017) won a preliminary victory this week at the U.S. Supreme Court. By way of two orders issued Monday (available here and here), the Court will allow the Travel Ban to take effect pending a final decision on its legality. This suggests that “Travel Ban 3,” unlike its predecessors, eventually may be upheld fully by the Supreme Court because Monday’s order was unlimited. Supreme Court orders issued in earlier Travel Ban cases were limited.

After the Administration issued Travel Ban 3, federal district courts in Maryland and Hawaii temporarily enjoined enforcement (in other words, the courts blocked the Travel Ban from taking effect). (It should be noted that Travel Ban 3 as applied to North Korea and Venezuela was not challenged in court, and therefore those provisions were not affected by the district court injunctions.)

The Maryland decision is currently on appeal to the U.S. Court of Appeals for the Fourth Circuit, and the Hawaii decision is on appeal to the U.S. Court of Appeals for the Ninth Circuit. Regardless of the outcome of the appeals, the losing party is expected to seek Supreme Court review.

Effect of the Supreme Court’s action

As already noted, the Supreme Court decision means that Travel Ban 3 will be in effect for the time being. As a result of the Travel Ban, certain nationals of Iran, Libya, Somalia, Syria and Yemen, all of which were covered by the March 6 travel ban, plus Chad, North Korea and Venezuela, will be subject to specific, additional restrictions on their ability to enter the United States. Some will be subject to total bans.

Of course, any non-U.S. citizen from any country seeking entry to the United States potentially could be subject to generally applicable programs used to screen out persons who pose a security or other risk to the United States, including the “extreme vetting” program instituted by the Trump Administration.

Different restrictions apply to each nation based on the security risk posed by nationals of that country. It is important to emphasize that these restrictions apply only to persons from covered countries who are seeking entry to the United States. If the individual is already in the United States in a lawful status, then he or she may remain for the authorized period of stay. Such an individual would not be affected by the travel ban unless he or she left the United States and then sought to re-enter.

Travel restrictions by country

Country

Suspension

North Korea and Syria

No entry as immigrants or nonimmigrants

Chad, Yemen, Libya

No entry as immigrants or nonimmigrants on business or tourist visas

Somalia

No entry as immigrants; nonimmigrants subject to enhanced screening and vetting

Iran

No entry as immigrants or nonimmigrants except under valid student and exchange visitor visas; enhanced screening and vetting

Venezuela

No entry for certain government officials or their immediate family members as nonimmigrants on business or tourist visas

Exceptions and waivers

Travel Ban 3 does not apply to entries to the United States by

*any foreign national with a valid visa as of the effective date of the Proclamation (September 24, 2017)

*any lawful permanent resident of the United States

*any person paroled into the United States

*any person holding a valid travel document in effect on the effective date of the Proclamation

*any dual nationals of a nation covered by the Proclamation when the individual is traveling on a passport issued by a nation that is not covered by the Proclamation

*any person on a diplomatic visa or others, such as those granted asylum or already admitted to the United States as refugees.

Waivers of the Proclamation may be granted on a case-by-case basis if (1) denial of entry would cause clear hardship to the individual, (2) the individual did not pose a threat to the national security or public safety of the United States, and (3) entry would be in the national interest.

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