2.10.20

The Trump Administration has amended Proclamation 9645 (commonly known as “Travel Ban 3.0”) to include six new countries. The new provisions restrict the issuance of visas that can lead to green cards for nationals of Eritrea, Kyrgyzstan, Myanmar, and Nigeria, and nationals of Sudan and Tanzania will no longer be eligible for the Diversity Visa Lottery. The addition of these countries to the Travel Ban will become effective on February 21.

Background

Travel Ban 3.0, issued in 2017, currently restricts entry to certain individuals from Iran (ban on all visas except student and exchange visas), Libya and Yemen (ban on all immigrant “permanent” visas, and tourist and business visas), North Korea and Syria (ban on all travel), Somalia (ban on immigrant “permanent” visas), and Venezuela (ban applicable to some government officials). The different restrictions are based on assessments of the security risk posed by nationals of the particular country and security information sharing with the U.S. government. Travel Ban 3.0 was upheld by the U.S. Supreme Court in 2018.

The expansion – who is affected?

The new expanded provisions (we’ll call the amended version of the 2017 Proclamation “Travel Ban 3.1”) were issued on January 31. The amendments update and incorporate terms of Travel Ban 3.0 and are also based on enhanced assessments of national security and the safety of the public. The new restrictions, however, are generally less extensive than those imposed in Travel Ban 3.0. First, there are no restrictions on entry or visa issuance in any nonimmigrant (temporary visa) category. That means that nationals of these six countries may be issued nonimmigrant (temporary) visas for employment and non-employment reasons and be allowed entry to the United States. Second, the restrictions imposed on nationals of Sudan and Tanzania are limited, and apply only to individuals seeking entry as Diversity Immigrants under the Diversity Visa Lottery. Third, with respect to nationals of Eritrea, Kyrgyzstan, Myanmar, and Nigeria, entry into the United States as immigrants is suspended “except as Special Immigrants whose eligibility is based on having provided assistance to the United States Government.”

Although the language of Travel Ban 3.1 refers to suspending entry as an immigrant and does not bar the issuance of immigrant visas to nationals of these countries, it is unclear whether an Embassy or Consulate abroad will continue to issue immigrant visas. It is also unclear whether, even if an immigrant visa were obtained, entry would be suspended in accordance with the travel ban.

The exceptions to Travel Ban 3.1 continue to apply to

  • Any foreign national with a valid visa as of February 21, 2020. If an immigrant visa is issued after the February 21 effective date, the entry of the individual would be covered by the expanded travel ban and would be barred.
  • A lawful permanent resident of the United States. Because a lawful permanent resident of the United States is not barred, it appears that the suspension on entry to immigrants applies only to individuals who were issued immigrant visas but never entered the United States and never became lawful permanent residents of the United States.
  • Any person paroled into the United States.
  • Any person holding a valid travel document in effect on February 21, 2020.
  • Any dual nationals of a nation covered by Travel Ban 3.1 when the individual is traveling on a passport issued by a nation that is not covered by Travel Ban 3.1.
  • Any person on a diplomatic visa or others, such as those granted asylum or already admitted to the United States as refugees.

Are waivers available?

Travel Ban 3.1 continues to allow for waivers to be granted on a case-by-case basis if

  • The denial of entry would cause clear hardship to the individual,
  • The individual does not pose a threat to the national security or public safety of the United States, and
  • The entry would be in the national interest.

Conclusion

We expect increased scrutiny of foreign travel by nationals of Eritrea, Kyrgyzstan, Myanmar, Nigeria, Sudan, and Tanzania. Employers should prepare for issues that could arise for individuals from these countries on their requested entry to the United States, particularly during the implementation of this expanded travel ban.

We will keep you posted of any developments.

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