New travel ban effective now: Broad nation-based restrictions with some exclusions

Last week, the Trump Administration issued a new Presidential Proclamation that will restrict the entry of nationals from more than a dozen countries. The restrictions took effect this past Monday, June 9.

The stated goal of the restrictions is to protect against terrorism and threats to national security. As we continue to analyze the details, the following is a summary of what we know so far, including a closer look at the exceptions and how they may (or may not) work in practice.

Countries subject to full travel suspensions

Nationals of the following countries are subject to a near-total suspension of entry into the United States:

• Afghanistan
• Burma (Myanmar)
• Chad
• Republic of the Congo
• Equatorial Guinea
• Eritrea
• Haiti
• Iran
• Libya
• Somalia
• Sudan
• Yemen

Countries subject to partial travel restrictions

Nationals of the following countries face limited visa restrictions, including suspensions on B-1/B-2 (visitor), F and M (student), J (exchange), and immigrant visa categories:

• Burundi
• Cuba
• Laos
• Sierra Leone
• Togo
• Turkmenistan
• Venezuela

Who is restricted?

The restrictions apply only to foreign nationals who

• Were outside the United States on June 9, and
• Did not have a valid U.S. visa on that date.

It remains unclear whether individuals who were physically present in the United States on June 9 and later travel abroad can safely re-enter under the exceptions listed below. Similar questions arose under prior travel bans, and implementation guidance may vary. We will closely monitor agency interpretations and consular guidance, and will provide updates as needed.

Exceptions are discretionary and unclear

The proclamation includes a variety of exceptions, but many of them are vague or subject to broad discretion. As a result, it is unclear who will benefit, and how consistently the exceptions will be applied. Here are some of the key categories:

• Department of Justice-related exception: This applies to individuals whose presence in the United States is deemed to be critical to a DOJ-related interest (for example, witnesses in a criminal trial). These exceptions must be cleared by the Attorney General, in coordination with the Secretary of State and the Department of Homeland Security.
• U.S. National Interest exception: Travel may be allowed if the Secretary of State (or designee), in coordination with the DHS, determines that entry serves a U.S. national interest.

Again, these exceptions are wholly discretionary. There is no defined process or criteria for determining what qualifies. Even where categories seem to be defined, their application in a particular case will still be up to the interpretation of the government. For example, “Athletes & Major Sporting Events” falls within the U.S. National Interest exception. It generally applies to athletes, coaches, essential support personnel, and immediate family traveling for the World Cup, Olympics, or other “major sporting event.” However, what sporting event qualifies as “major” is up to the Secretary of State.

For example, although the International Federation of Association Football (better known as “FIFA”) may be covered, it is unclear whether a regular-season National Football League game or a less globally visible tournament would qualify. Whether a sporting event qualifies for the exception may depend on who’s playing, who’s watching, or frankly, who at the State Department is in charge that week.

Who is NOT subject to the travel ban?

Under the proclamation, the suspension does not apply to any of the following:

• Lawful Permanent Residents
• Dual national of a designated country traveling on a passport issued by a non-designated country
• Foreign nationals holding valid nonimmigrant visas in the following classifications:
• A-1, A-2 (diplomats)
• C-2, C-3 (transit to the UN)
• G-1 through G-4 (international organizations)
• NATO-1 through NATO-6

• Athletes and support personnel (including immediate family) traveling for the World Cup, Olympics, or other “major sporting event” (as discussed above) as determined by the Secretary of State
• Immediate Relative Immigrant Visas for IR-1/CR-1 (spouse), IR-2/CR-2 (child), and IR-5 (parent); IR-3, IR-4 and IH-3, and IH-4 (adoption-based immigrant visas), but only with “clear and convincing” proof of identity and relationship, such as DNA. Again, this standard is undefined and entirely at the discretion of the consular officer and the Secretary of State.
• Afghan Special Immigrant Visa holders and SIVs for employees of the U.S. government.
• Immigrant visas for ethnic or religious minorities in Iran. Again, there’s no guidance on how such persecution is to be assessed or evidenced.

Ongoing review and uncertain future

• The proclamation requires the Secretary of State, Attorney General, DHS Secretary, and Director of National Intelligence to review and report to the President every 90–180 days.
• Egypt was not included in the current list, but it has been flagged for further review of its security procedures. The flagging may be symbolic – no action is being taken against Egypt at this time.

Where things stand now

Visa issuance is likely to be significantly disrupted for individuals from the listed countries, even for cases that used to be considered routine. Moreover, the exceptions exist largely on paper and may not be reliable for planning purposes. This is especially true for events, performances, or employment-related travel.

As a result, employers, universities, and event organizers (including sports teams) should prepare contingency plans and avoid relying on discretionary exceptions unless and until a visa is issued. We strongly advise affected individuals not to leave the United States unless absolutely necessary.

As noted above, we will provide updates as we learn more about how consular posts and U.S. Customs and Border Protection will interpret and apply the Proclamation.

If you have employees in the United States or abroad who could be affected by this Proclamation, please contact any member of our Immigration Practice Group.