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Supreme Court Reinstates Travel Ban

5 Dec

On September 24th, President Trump issued a Proclamation, “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats.”  This new proclamation expanded and extended the previous “travel ban.”  Subsequently, lower courts had issued injunctions preventing the new version of the ban from going into full effect, and on November 13th, the Ninth Circuit Court of Appeals issued an order that partially upheld a lower’ court’s injunction.

The Ninth Circuit decision had allowed the travel ban to be enforced, except with respect to those who have “a bona fide relationship with a person or entity in the United States.”  Yesterday the Supreme Court announced that the injunction is stayed completely, without the exception previously imposed by the Ninth Circuit, while the case is pending litigation on the merits to determine whether all or part of the ban is unconstitutional and should be permanently enjoined.

Effective Date

The ban may now be enforced, starting today, though the Administration may allow a few days lead-time before beginning full enforcement.  The restrictions are in place indefinitely, though the proclamation provides that countries may be removed from the list upon meeting certain criteria listed in the proclamation with respect to “identity-management information”,  “national security and public-safety information”, and “national security and public-safety risk assessment.”

Who Is Impacted?

The proclamation can now be enforced as indicated in the chart below and no exception is provided for those with “a bona fide relationship with a person or entity in the United States”.

Scope of Restrictions and Possible Waivers

The proclamation generally applies to foreign nationals referenced above who are outside the United States on the effective date and do not have a valid visa on the effective date.   Those who are impacted and do not fall under one of the exceptions may apply for a waiver.  The proclamation directs the Secretaries of State and Homeland Security to “coordinate to adopt guidance addressing the circumstances in which waivers may be appropriate for foreign nationals seeking entry as immigrants or nonimmigrants.”

Waivers may be granted “only if a foreign national demonstrates to the consular officer’s or CBP official’s satisfaction” each of the following elements:

  1. Denying entry would cause the foreign national undue hardship;
  2. Entry would not pose a threat to the national security or public safety of the United States; and
  3. Entry would be in the national interest.

Individuals who secure a waiver must still demonstrate that they meet all other requirements of the requested visa category.

Case-by-Case Consultations Recommended

The proclamation allows for case-by-case waivers and provides examples of circumstances wherein a waiver may be appropriate, though categorical waivers are disallowed.