Trump Travel Ban 3.0

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On the eve of the expiration of the second version of the Trump Administration's travel ban, the White House introduced an updated travel ban on September 24, 2017, which added certain foreign nationals from Chad, North Korea, and Venezuela to the list of countries singled out by the Administration as a threat to the security and interests of the U.S.  The country impacts of the latest travel ban are:

  • Chad - suspends entry of immigrants and temporary visitors on B-1/B-2 visas;
  • Iran - suspends entry of immigrants and all non-immigrants, except F, M, and J visas, though they will be subject to enhanced screening;
  • Libya - suspends entry of all immigrants and temporary visitors on B-1/B-2 visas;
  • North Korea - suspends entry of all immigrants and nonimmigrants;
  • Somalia - suspends the entry of immigrants, and requires enhanced screening of all non-immigrants;
  • Syria - suspends the entry of all immigrants and non-immigrants;
  • Venezuela - suspends the entry of certain government officials and their family members on B-1/B-2 visas; and.
  • Yemen - suspends the entry of immigrants and temporary visitors on B-1/B-2 visas.

Travel restrictions for nationals of Sudan (who were impacted by the two earlier versions of the travel ban) have been lifted, and nationals of Iraq will not be subject to an outright ban but will be subject to additional screening measures.

The effective date of Travel Ban 3.0 is varied. The new restrictions are effective immediately for nationals of Iran, Libya, Somalia, Syria and Yemen who do not have a bona-fide relationship with a U.S. person or entity. On October 18, 2017, the new restrictions will become effective for all persons subject to the proclamation, including the nationals of the aforementioned countries who do have bona-fide relationships with U.S. persons or entities, as well as the nationals of Chad, North Korea, and Venezuela as described above. There are also a number of notable exceptions to this latest travel ban, including:

  • Lawful permanent residents;
  • Foreign nationals admitted to the U.S. or paroled into the U.S. on or after the applicable effective dates, or in possession of a document other than a visa (such as a boarding foil, transportation letter, or advance parole document) valid on the applicable date or issued thereafter;
  • Dual nationals traveling on a passport issued by a non-designated country;
  • Foreign nationals traveling on a variety of diplomatic visas; and,
  • Foreign nationals granted asylum in the U.S., refugees admitted to the U.S., or individuals who have been granted withholding of removal, advance parole, or protection under the Convention Against Torture.

Waivers may be available if foreign nationals can demonstrate to consular officers or to Customs and Border Protection officials that denying entry would cause the foreign national undue hardship, entry would not pose a threat to national security or public safety and entry would be in the national interest.  The exact form of application for such a waiver is still to be determined. We will continue to bring you updates on this continuing travel ban saga, including federal litigation seeking to overturn this latest proclamation.

Temporary Restraining Orders and a Preliminary Injunction issued, halting Executive Order on Travel Ban

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Several U.S. District courts issued temporary restraining orders related to the revised Travel Ban last month. Further, the U.S. District Court of the District of Hawaii in its Order found there was "unrebutted evidence of religious animus" and a "dearth of information indicating a national security purpose", and concluded that the plaintiffs were likely to succeed on the merits of their claim that the travel ban violated the Establishment Clause of the U.S. Constitution. The Court further held that no "constitutionally significant" changes were made to this rewritten order and that it therefore suffered from all the same failings of the first executive order (withdrawn by the government and replaced by the rewritten order). Many of these same findings were reiterated when the District Court issued its Preliminary Injunction on March 29, 2017. In response to the government's arguments that only the four-corners of the Executive Order should be reviewed and statements made by the President during the campaign and while in office leading up to the ban should be ignored, the Judge's Order states: "The Court will not crawl into a corner, pull the shutters closed, and pretend it has not seen what it has."  The U.S. District Court's Preliminary Injunction is binding on all federal agencies, including the Department of Homeland Security and the Department of State. The Executive Branch indicated it will again appeal to the Ninth Circuit Court of Appeals. We will bring you further updates as the travel ban litigation progresses.