United States: The Anatomy Of The Travel Ban

Last Updated: July 26 2018
Article by Dawn M. Lurie

Seyfarth Synopsis. The Supreme Court affirmed President Trump's authority to ban certain foreign nationals from entering the country, finding that such travel restrictions are justified based on national security concerns.

On June 26, a deeply divided Supreme Court issued a 5-4 ruling upholding the latest iteration of the "Travel Ban" or "Travel Ban 3.0." The Court held that the September 2017 order, which created the Ban and targeted individuals from mainly Muslim countries, was a lawful exercise of presidential authority (Trump vs. Hawaii). Employers with employees from Iran, Libya, North Korea, Somalia, Syria, Venezuela and Yemen will now need to review travel-related risks in order to ensure continuity of business operations. Individuals will also need to be familiar with the specific visa and entry permissions for each country while universities will need to consider foreign student-related issues.

Background

We have written previously about the January 27, 2017 Executive Order, (EO 13769), the second, March 6, 2017 Executive Order, ( EO 13780) as well as the third September 24, 2017 Presidential Proclamation 9645, or Travel Ban 3.0, entitled Enhancing Vetting Capabilities and Processes For Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats. We followed along as federal judges in Hawaii and Maryland issued orders, blocking major portions of President Trump's September 24, 2017 Presidential Proclamation. We also blogged about the Supreme Court's previous ruling, which had partially enforced the Travel Ban by staying the preliminary injunctions issued by U.S. District Courts in Hawaii and Maryland that had partially blocked Travel Ban 3.0 for those individuals who could demonstrate they had a bona fide relationship with a person or entity in the United States. We then chronicled the Administration as it amended the Presidential Proclamation on April 10, 2018, removing restrictions imposed on nationals of Chad, citing the country's improvements to security.

For some critics of the President's policies, the most problematic aspect of the Travel Ban was the anti-Muslim bias that led to allegations of religious-based discrimination. The later iterations of the Travel Ban were "watered down," according to the President, and nationals of non–Muslim majority countries were added to the list of affected nations. The concern that the Travel Ban is actually a Muslim ban is still very much alive. The final 3.0 version had been reviewed and blessed by the Justice Department, Department of Homeland Security and Department of State. Critics argued that the Travel Ban violated the Constitution and federal immigration law, but at the end of the day, the Court found that the travel restrictions were justified by the government's national security concerns.

The Opinion

Writing for the majority, Chief Justice John Roberts stated that "because there is persuasive evidence that the entry suspension has a legitimate grounding in national security concerns, quite apart from any religious hostility, we must accept that independent justification." The opinion also stated "under these circumstances, the Government has set forth a sufficient national security justification to survive rational basis review." The opinion confirmed that the President retains the authority under the Immigration and Nationality Act (INA) to "suspend entry of the aliens into the United States." The INA, Justice Roberts wrote, "exudes deference" to the President providing him "broad discretion to suspend" the entry of noncitizens into the United States. Justices Anthony Kennedy, Clarence Thomas, Samuel A. Alito Jr. and the Court's newest member, Justice Neil Gorsuch, joined the majority opinion. Justice Kennedy filed a concurring opinion in which he warned the Administration that "they must not disregard the Constitution." "An anxious world must know that our Government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts," cautioned Kennedy.

With the plaintiffs suggesting President Trump's anti-Muslim statements illustrated religious animus—thereby invalidating the Travel Ban under the Establishment Clause of the Constitution—the Court addressed the relevance of President Trump's anti-Muslim statements. Justice Roberts noted that the Court needed to balance the president's comments with his national security responsibilities, as he was protecting the country and improving vetting procedures. "The issue before us is not whether to denounce the statements," Chief Justice Roberts wrote. "It is instead the significance of those statements in reviewing a presidential directive, neutral on its face, addressing a matter within the core of executive responsibility." "In doing so," he continued, "we must consider not only the statements of a particular president, but also the authority of the presidency itself." While many argued that President Trump's statements crossed a constitutional line, the majority of the Court rejected the argument that the President had overstepped his constitutional authority, finding there had been no religious discrimination.

Justice Sonia Sotomayor, in her dissent, argued that the Court had "blindly" sanctioned "a discriminatory policy motivated by animosity toward" Muslims.

Who Is and Who Is Not Affected by the Ban?

Which countries are affected?

Due to the Administration's concerns that certain countries remain deficient with "respect to their identity-management and information-sharing capabilities, protocols, and practices,"1 the Travel Ban affects nationals of seven countries (Iran, Libya, North Korea, Somalia, Syria, Venezuela and Yemen). The Ban places varying degrees of restrictions on the entry of certain citizens of those countries. The Supreme Court's ruling allowed the Travel Ban to fully go into effect, and be enforced, consistent with its previous order of December 4, 2017.

What is the scope of the current Travel Ban?

The Ban only applies to specifics individuals from the above-mentioned countries who:

  1. Are outside of the U.S.;
  2. Do not have a visa that was valid as of the applicable effective date (either September 24, 2017 or October 18, 2017 as elaborated in the Proclamation); and
  3. Do not have a waiver or other travel document.

The Ban impacts individuals who are seeking both temporary nonimmigrant visas and immigrant visas for permanent resident (or green card) status.

It is critical to note that existing visa holders, including H-1Bs, may continue to enter on visas that were previously issued, but these visa holders should expect "extreme vetting" by Customs and Border Protection (CBP) at entry. The State Department has stated that no visas will be revoked pursuant to the Travel Ban and noted that consular officers will determine whether an otherwise qualified visa applicant may be eligible for a waiver under the Travel Ban (see discussion below).

The Cheat Sheet

Country

Nonimmigrant Visas

Immigrant and Diversity Visas

Iran

No nonimmigrant visas except F, M, and J visas

No immigrant or diversity visas

Libya

No B-1, B-2, and B-1/B-2 visas

No immigrant or diversity visas

North Korea

No nonimmigrant visas

No immigrant or diversity visas

Somalia

No immigrant or diversity visas

Syria

No nonimmigrant visas

No immigrant or diversity visas

Venezuela

No B-1, B-2 or B-1/B-2 visas of any kind for officials (and their immediate family members) of the following government agencies: Ministry of Interior, Justice, and Peace; the Administrative Service of Identification, Migration, and Immigration; the Corps of Scientific Investigations, Judicial and Criminal; the Bolivarian Intelligence Service; and the People's Power Ministry of Foreign Affairs.

Yemen

No B-1, B-2, and B-1/B-2 visas

No immigrant or diversity visas

* Courtesy of the Department of State.

Are there exceptions?

In addition to exceptions for any national who was in the U.S. and any national who had a visa on the effective date of the Proclamation, (regardless of immigration status), the following are exempt from the Travel Ban: permanent residents (or green card holders); dual nationals traveling on a passport from a country that is not affected by the Travel Ban; diplomats; individuals who were paroled into the U.S. on or after the applicable effective date; and, foreign nationals traveling with documents other than visas. Refugees who are already in the U.S., asylees granted asylum by the U.S., and individuals granted withholding, advance parole or protection based on the Convention Against Torture are also not affected by the Court's decision.

Are there any waivers?

The Travel Ban theoretically provides for waivers. A waiver is permission to obtain a U.S. visa, even though the Travel Ban renders an individual ineligible to obtain the visa. There are certain exceptions available for people who can:

  1. Demonstrate that they will suffer "undue hardship" if denied entry;
  2. Demonstrate that their entry would not pose a threat to the national security or public safety of the United States; and,
  3. Demonstrate that their entry would be in the national interest.

Unlike the past decisions, this decision does NOT allow for an exception for "Bona Fide" relationships, including close family ties, unless the ties are for a refugee-related claim. The Travel Ban states "The Secretary of State and the Secretary of Homeland Security shall coordinate to adopt guidance addressing the circumstances in which waivers may be appropriate for foreign nationals seeking entry as immigrants or nonimmigrants." Unfortunately, there is currently a lack of information and guidance on the logistics of how State Department consular officers or CBP officers have been, or will be making, such waiver determinations. There is also no formal application in which to apply for such waiver.

These waivers are clearly discretionary and are granted on a case-by-case basis according to information provided by the State Department. As of June 30, 2018, 898 applicants were cleared for a waiver after a consular office determined that all criteria had been satisfied and all processing had been completed. Immigration advocacy groups have filed a lawsuit to obtain more information about the waiver process. In Justice Stephen Breyer's dissenting opinion, which was joined by Justice Elena Kagan, he described the waiver process as "window dressing," noting there was no judicial review contemplated. Only time will tell how transparent, fair and effective the waiver process will be.

What about students?

While the Supreme Court decision granted exceptions for student visas issued to nationals of Iran, the road ahead will likely be difficult for these students. This is important due to the high number of Iranian students in the U.S. According to a Washington Post article, "17,000 students from the list of banned countries studying in American colleges and universities. More than 12,000 them were Iranian."2 Some experts are expecting lengthy visa application wait times and, even after a visa is issued, extreme vetting by CBP at the U.S. border. Others in the education field are hopeful that returning students will be allowed an unfettered return in August. Most agree, however, that it is not unreasonable to expect a decline in enrollment, as students may look elsewhere for school in order to ensure continuity and peace of mind.

What Should Employers and Universities Do Now?

The Travel Ban saga is complicated. There is plenty of confusion regarding the government's restrictions on travel to the U.S. It is critical that competent counsel be retained for complex situations such as urgent business needs. In the interim, all parties should educate themselves on the effects of the Travel Ban, including risks of travel, especially for those who are eligible to enter the U.S. as nationals of one of the affected countries. The State Department recently issued an overview discussing the June 26 Supreme Court Decision on Presidential Proclamation 9645. The State Department link includes a FAQ section that attempts to distill down the Ban and answer anticipated questions.

At this juncture, the most conservative approach for those with affected nationalities already in the U.S. suggests foregoing travel plans, whether for work or pleasure. For example, applying an abundance of caution, H-1B holders may opt not to leave the U.S. While legally unaffected by the Ban, some permanent residents are also choosing to remain lodged in the U.S. For those who must travel, especially for individuals who will need to renew or apply for a visa, a careful review of the visa history, baseline visa eligibility, as well as something as innocuous as social media account review should be considered.

Given the potential of the Travel Ban to affect more than 135 million people worldwide, employers and universities should prepare for the impact by offering access to correct advice—ensuring everyone is educated about travel-related matters is critical.

Footnotes

1 See the Proclamation at https://www.whitehouse.gov/presidential-actions/presidential-proclamation-enhancing-vetting-capabilities-processes-detecting-attempted-entry-united-states-terrorists-public-safety-threats/

2 See the article at https://www.washingtonpost.com/news/global-opinions/wp/2018/06/26/call-trumps-travel-ban-what-it-is-an-iran-ban/?utm_term=.31329d5dfe4f

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Dawn M. Lurie
Similar Articles
Relevancy Powered by MondaqAI
Fisher Phillips LLP
Vivanco & Vivanco Corporate Services LLC
Littler Mendelson
Ogletree, Deakins, Nash, Smoak & Stewart
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Fisher Phillips LLP
Vivanco & Vivanco Corporate Services LLC
Littler Mendelson
Ogletree, Deakins, Nash, Smoak & Stewart
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions