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Sep 26, 2017

Trump Administration Announces Third Iteration of Travel Ban; Supreme Court Cancels Oral Argument

Written by: Matthew Galati

Over the weekend, the Trump Administration announced its third version of a travel ban against nationals of eight nations, adding three new countries to the list for the first time. Unlike previous bans, the travel restrictions are mostly indefinite in duration. The new restrictions prompted the Supreme Court to cancel upcoming oral arguments regarding the second version of the travel ban, which had been scheduled for early October.

The new ban – published in the form of a presidential proclamation – targets nationals of Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela and Yemen with varying applicability. The following nationals and visa admissions are affected:

  • Chad – All immigrants; nonimmigrant visitors (B-visas);
  • Iran – All immigrants; all nonimmigrants except students (F and M) and exchange visas (J);
  • Libya -- All immigrants; nonimmigrant visitors (B-visas);
  • North Korea – All immigrants and nonimmigrants;
  • Syria – All immigrants and nonimmigrants;
  • Venezuela – officials of government agencies “involved in screening and vetting procedures -- including the Ministry of the Popular Power for Interior, Justice and Peace; the Administrative Service of Identification, Migration and Immigration; the Scientific, Penal and Criminal Investigation Service Corps; the Bolivarian National Intelligence Service; and the Ministry of the Popular Power for Foreign Relations -- and their immediate family members, as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas”;
  • Yemen -- All immigrants; nonimmigrant visitors (B-visas);
  • Somalia – All immigrants.

Certain categories of admission of these nationalities not explicitly banned, such as Somali nonimmigrants or Iranian exchange visitors, are to undergo “additional scrutiny” or “enhanced vetting.” It is not clear what in practice this will mean for such visa applicants and whether these additional procedures will result in prohibitively long administrative processing, effectively tantamount to a full ban.

The ban went into limited effect on September 24, applying to individuals already affected by the second version of the ban and lacking “a credible claim of a bona fide relationship with a person or entity in the United States following the Supreme Court’s June 26 decision. The ban is scheduled to go into full effect on October 18, 2017. Importantly, it is only to apply to individuals outside the U.S. on the effective date and do not already have visas. Further, and similar to the second version of the ban, it is not applicable to dual nationals travelling on the non-affected country’s passport, lawful permanent residents, diplomats, asylees/refugees, and those with travel documents such as advance parole which are valid on the effective date. The ban also provides for case-by-case waivers, allowing visas and admissions under stated criteria and examples.

As was the case with the previous two versions of the ban, this iteration is virtually certain to draw legal challenges, although it remains to be seen how courts will treat this version. The litigants that were scheduled to appear before the Supreme Court have been ordered to submit briefs regarding whether their case is now moot given this proclamation.

We will continue to monitor developments of the Administration’s new travel policies including any agency guidance to be issued. We invite affected foreign nationals, their family members, or their employers to contact us today for advice with respect to specific circumstances.

 

 

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