In a speech before the American Israeli Council on September 19, 2024, then candidate Donald Trump brought up the topic of his administration's travel bans from 2017.
We will restore the travel ban, some people call it the Trump travel ban and keep the radical Islamic terrorists out of our country that was upheld by the Supreme Court. And it really did work. Again, we had no terrorist attacks into the United States. Think of it now.1
Indeed, let us think of it now. With President Trump's second inauguration upcoming next month and the announcements of South Dakota Governor Kristi Noem as Trump's nominee to head the Department of Homeland Security2, Tom Homan, former acting director of Immigration and Custom's enforcement to serve as "Border Czar"3, and Stephen Miller4 to manage immigration policy as Trump's Deputy Chief of Staff, many are speculating whether the "Trump travel ban" will return.
Starting with Executive Order 13769 on January 27, 2017, the Trump Administration attempted to ban temporarily entry into the United States by citizens from Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen, and refugees generally, and Syrian refugees indefinitely. This effort was blocked in court, to which the administration responded with a second attempt, Executive Order 13780 in March, which was again blocked.5 In September 2017, the administration issued Presidential Proclamation 9645: Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats. This final version of the ban was ultimately upheld by the Supreme Court on June 26, 2018 in Trump v. Hawaii.6
The final version of the travel bans restricted travel on citizens from Burma (Myanmar), Eritrea, Kyrgyzstan, Nigeria, Sudan, and Tanzania in addition to those from the earlier bans of travelers from Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen.7
With Trump's team having gained experience in framing the travel ban as a national security measure in a way that it would overcome judicial review during his first administration, and given his comments promising to restore the ban,8 immigration attorneys should prepare for the possibility that some type of travel restrictions could be implemented in the second Trump administration. Any such restriction could be framed in a similar manner as the earlier bans, targeting travelers from countries that have been deemed as terrorist "hot spots" (state sponsors of terrorism) as identified by the State Department: Cuba, Iran, North Korea, and Syria.9 Additionally, any countries identified by the Department of State, CIA, etc. as not meeting US security standards for vetting, screening, or those without stable governments or in which active terrorist organizations operate could be part of a travel ban.
In the prior administration, US Citizens and Lawful Permanent Residents were exempted from the ban, but in the chaos of the initial ban's implementation many were caught up in the confusion. In an interview with Meet the Press on December 8, 2024, President-Elect Trump expressed his intention to deport the US citizen family members of unlawfully present residents of the United States, and to end birthright citizenship.10 Could such a disregard for the rights of US citizens extend to other areas of immigration policy? While any such attempts could be challenged in Federal court and in the court of public opinion, a relevant concern is the irreparable chaos and harm that could be caused in the interim.
What would be the impact on employment/legal immigration?
As all immigration attorneys understand, the second Trump administration's imposition of a travel ban would be only one part of a widespread effort to dramatically curtail immigration to the United States. At the very least, U.S. employers seeking to bring high-skilled talent from any country that was once subject to a travel ban, or that is likely to appear on a putative upcoming ban, will want to contact their immigration attorney as soon as possible to determine the feasibility of securing a visa.
As occurred during the first Trump administration, employers should expect a higher rate of requests for evidence issued on pending applications, a higher rate of denials, and even the reopening and revocation of some already approved applications. For those employers who have foreign talent already in the U.S., these workers should plan not to depart the United States during the transition to the new administration and until the administration's intentions with respect to the travel bans become clearer. Non-immigrant workers and those with pending adjustment of status applications should weigh the need for travel against the risks.
Potential travel bans would also greatly affect students seeking to study at U.S. universities and colleges. Several US universities recently updated their websites with warnings to students11 including Cornell and the University of Massachusetts, Amherst. Both schools have advised international students and staff to return to the US before Trump's second inauguration, Cornell going so far as to advise those from China and India to avoid international travel given the uncertainty surrounding the new administration's plans. While there have been no publicly stated announcements from Trump or his advisors on the intention to limit travel from China or India, the process of obtaining visa appointments and visa approval is also expected to become more difficult and time consuming.
Ultimately, we will not know the extent of incoming President Trump's plans for immigration until he takes office, and his administration begins to implement its new agenda. But based on his first term in office we should be prepared for the possibility of any number of unexpected measures, chaotic implementations, and extreme methods.
Footnotes
2. In 2017, Governor Noem, then a member of Congress, voiced her support for the travel ban. https://www.newsweek.com/kristi-noem-new-homeland-security-secretary-1984221
3. Homan has promised to "run the biggest deportation force this country has ever seen". https://www.theguardian.com/us-news/2024/nov/11/tom-homan-donald-trump-border-czar-immigration
4. Miller was behind the 2017 travel bans and has other plans to restrict legal immigration. https://www.newsweek.com/stephen-miller-trump-immigration-deputy-chief-staff-1981080
5. https://www.cnn.com/2018/06/26/politics/timeline-travel-ban/index.html
6. https://www.npr.org/2018/06/26/606481548/supreme-court-upholds-trump-travel-ban
7. https://www.cnn.com/2020/01/31/politics/trump-administration-travel-ban-six-new-countries/index.html
8. For example, his Council Bluffs, IA speech on July 7, 2023 to supporters was reported as the first time he publicly mentioned bringing back travel bans in a campaign speech, promising to bring it back "even bigger than before". https://www.cbsnews.com/news/trump-bring-back-travel-ban-muslim-countries/
9. https://www.state.gov/state-sponsors-of-terrorism/
11. https://international.globallearning.cornell.edu/alerts/guidance-possible-immigration-changes-2025 & https://www.umass.edu/international-programs/international-students-scholars
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