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U.S. Travel Ban Upheld, Case-by-Case Consultations Recommended

3 Jul

In its decision dated June 26, 2018, the Supreme Court of the United States upheld the third version of President Trump’s Travel Ban, which was originally announced on September 24, 2017, via a Presidential Proclamation. The full name of the proclamation is “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats.” In Trump v. Hawaii, the Court found that the proclamation was “squarely within the scope of Presidential authority under the [Immigration and Nationality Act].” The proclamation currently excludes nationals from seven (7) countries absent an exception or waiver.

Who Is Impacted?

The Proclamation provided greater detail on the criteria used to determine which countries’ nationals would be subject to the ban, and tailored the ban more narrowly on a country-by-country basis, which overcame judicial scrutiny.  Restrictions vary by country, summarized in the chart below:

Scope of Restrictions and Possible Waivers

The proclamation generally applies to foreign nationals referenced above who are outside the United States and do not have a valid visa. Impacted foreign nationals who do not fall under one of the exceptions may apply for a waiver. 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 also establish qualification, that they meet all of the requirements, for the requested visa category.

Case-by-Case Consultations Recommended  

The proclamation provides for waivers on a case-by-case basis and gives examples of circumstances wherein a waiver may be appropriate, though categorical waivers are disallowed. Contact your Foster LLP immigration attorney to arrange a consultation to evaluate the applicability of these travel restrictions to a particular applicant and the potential availability of a waiver or exception.