Navigating The Trump Travel Ban: Frequently Asked Questions

David Strashnoy
Last updated 6/26/2018 

On September 24, 2017, President Trump issued a proclamation (“Travel Ban 3.0”) replacing his previous Travel Ban Executive Order (“EO-2”), though it is substantially similar in many respects.  The proclamation serves to make the travel restrictions indefinite and modifies the list of countries affected.  Individuals from the designated countries with valid visas may continue to travel to the United States.  Although waivers to Travel Ban 3.0 are technically available to individuals with established ties to the U.S. or for other compelling reasons, the waiver process is extremely stringent and non-transparent.

On June 26, 2018, the U.S. Supreme Court upheld the legality of Travel Ban 3.0 in its consideration of Trump v. Hawaii, concluding that the President lawfully exercised the broad authority granted to him under the law to suspend the entry of aliens into the United States, primarily based on a Department of Homeland Security study which found that the entry of foreign nationals from the countries listed in the proclamation would be detrimental to the interests of the United States due to an inability to adequately vet such individuals.  The Court also addressed the relevance of President Trump’s previous statements that plaintiffs suggest demonstrate religious animus, thereby invalidating the Travel Ban 3.0 under the Establishment Clause.  In its analysis, the Court concluded that it may “look behind the face” of Travel Ban 3.0, but only in a limited manner to determine whether the policy is plausibly related to the government’s stated objective to protect the country and improve vetting procedures.  So despite the President’s previous statements, the Court upheld Travel Ban 3.0 because it could be reasonably understood to have resulted from a justification independent of unconstitutional grounds.

The proclamation states that the U.S. determines which countries are subject to the Travel Ban based on its ability to confirm the identities of foreign nationals seeking an immigration benefit and to assess whether they are a security or public safety threat.  That determination incorporates the following three categories of criteria:

 

  • Whether the country issues electronic passports embedded with data to enable confirmation of identity, reports lost and stolen passports to appropriate entities, and makes available upon request identity-related information not included in its passports.

 

  • Whether the country makes available, directly or indirectly, known or suspected terrorist and criminal-history information upon request, whether the country provides passport and national-identity document exemplars, and whether the country impedes the United States Government’s receipt of information about passengers and crew traveling to the United States.

 

  • Whether the country is a known or potential terrorist safe haven, whether it is a participant in the Visa Waiver Program that meets all of its requirements, and whether it regularly fails to receive its nationals subject to final orders of removal from the United States.

Travel Ban 3.0 was set to take effect on October 18, 2017, but on October 17, 2017, Federal District Courts in Hawaii and Maryland substantially blocked its implementation by granting temporary restraining orders.  On December 4, 2017, the Supreme Court issued an order allowing Travel Ban 3.0 to be fully implemented pending appeals in the lower courts, and heard oral arguments in Trump v. Hawaii on April 25, 2018.

President Trump signed EO-2 on March 6, 2017, a substantially revised version of an Executive Order titled “Protecting the Nation from Foreign Terrorist Entry into the United States,” (“EO-1”) which imposed a 90-day ban on the issuance of new visas for individuals from six majority-Muslim countries.  EO-1 was signed on January 27, 2017, and was plagued by a chaotic rollout and a wave of lawsuits nationwide challenging its legality.  On February 3, 2017, a Federal District Court in Seattle issued a temporary restraining order prohibiting the U.S. Government from implementing President Trump’s Travel Ban. The restraining order was subsequently upheld by the 9th Circuit Court of Appeals on February 9, 2017.  EO-1 was voluntarily rescinded by the Trump administration when EO-2 took effect.

Because the situation remains fluid, we created this FAQ to help you stay current with the latest information. Check back often for regular updates.

 


Q: Which Countries are Impacted by the Travel Ban?

Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen. Sudan, Iraq, and Chad were previously subject to the Travel Ban, but have since been removed from the list.

It is important to note that the Travel Ban restrictions affect each country differently, as follows:

Iran: Suspension of immigrant and all non-immigrant visas except student (F and M) and exchange visitor (J) visas.

Libya: Suspension of immigrant and B1/B2 visas.

North Korea: Suspension of all immigrant and non-immigrant visas.

Somalia: Suspension of immigrant visas.

Syria: Suspension of all immigrant and non-immigrant visas.

Venezuela: Suspension of B1/B2 visas to certain government officials.

Yemen: Suspension of immigrant and B1/B2 visas.


Q: How Long Will the Travel Ban Last?

The Travel Ban is indefinite.  The previous version of the Travel Ban was supposed to last 90 days and expired on September 24, 2017.


Q: Will More Countries Be Added?

Countries may be added or removed from the list depending on compliance with U.S. information-sharing requirements.


Q: Which Individuals From the Travel Ban Countries Are Affected?

The new proclamation bars the issuance of visas to individuals from the designated countries who:

  • Are outside the United States on the effective date of the proclamation (September 24, 2017 for individuals already affected by the previous Travel Ban and October 18, 2017 for newly affected individuals);
  • Do not have a valid visa on the effective date of the proclamation (September 24, 2017 for individuals already affected by the previous Travel Ban and October 18, 2017 for newly affected individuals); and
  • Do not qualify for a new visa or other travel document due to improper revocation or cancellation of their valid visa as a result of the EO-1 Travel Ban in January 2017.

In other words, individuals from the designated countries that have a valid visa on September 24, 2017 or October 18, 2017 (if their country of nationality was newly added to the list) are not immediately affected by the Travel Ban.  They could become affected if their visa expires.

The Travel Ban proclamation does not apply to:

  • Lawful Permanent Residents (“LPR”)
  • Foreign nationals admitted or paroled into the U.S. on or after the proclamation effective date
  • Foreign nationals with travel documents – such as a transportation letter, boarding foil, or advance parole document – valid on the proclamation effective date or issued on any date thereafter
  • Dual nationals traveling on a non-banned passport
  • Foreign nationals on diplomatic or diplomatic-type visas

Individuals that have already been granted asylum or refugees already admitted into the United States


Q: Are There Waivers to the Travel Ban?

Yes.  A U.S. Consular Officer may grant a waiver to the Executive Order on a case-by-case basis when an applicant demonstrates that:

  • Denying entry would cause undue hardship;
  • The entry of the applicant would not pose a threat to national security; and
  • The issuance of the visa is in the national interest.

Waivers may be appropriate in the following circumstances where an applicant:

  • Has previously been admitted to the United States for a continuous period of long-term activity, is outside the United States on the effective date of the proclamation, seeks to reenter the United States to resume that activity, and the denial of reentry would impair that activity;
  • Has previously established significant contacts with the United States but is outside the United States on the effective date of the proclamation for work, study, or other lawful activity;
  • Seeks to enter the United States for significant business or professional obligations and the denial of entry would impair those obligations;
  • Seeks to enter the United States to visit or reside with a close family member who is a United States citizen, lawful permanent resident, or alien lawfully admitted on a valid non-immigrant visa, and the denial of entry would cause undue hardship;
  • Is an infant, a young child or adoptee, an individual needing urgent medical care, or someone whose entry is otherwise justified by the special circumstances of the case;
  • Has been employed by, or on behalf of, the United States Government (or is an eligible dependent of such an employee) and the employee can document that he or she has provided faithful and valuable service to the United States Government; or
  • Is traveling as a United States Government-sponsored exchange visitor.

Please note that although waivers are technically available, the waiver process is extremely stringent and non-transparent.  According to the latest Department of State publicly available statistics, from December 8, 2017 to June 15, 2018, 809 visa applicants have had waivers approved.


Q: How Will the Travel Ban Affect Individuals Traveling to the United States?

Individuals from the designated countries that have a valid visa in their passport on the proclamation effective date are not affected by the new Travel Ban.  They may continue to travel to the United States, but may be subject to heightened scrutiny (“secondary inspection”) by Customs and Border Patrol (“CBP”) agents when seeking admission into the country.


Q: What Should I Expect in “Secondary Inspection”?

CBP can inspect your phone, laptop, and other electronics for evidence to support a ground of inadmissibility. Routine searches of all closed containers are considered reasonable at international borders and ports. This includes screening of social media accounts, text messages, and email. However, these electronic devices may not be subject to a deeper forensic examination without a reason for suspicion. In applying the Executive Order, CBP may try to claim that holders of passports from the eight listed countries automatically present a reason for suspicion of inadmissibility under security-related grounds.

Be prepared to answer extensive questions about your personal biographic history. These would include: biographic data, parents’ citizenship and origin, siblings and their locations in the world, immigration history, marital status, marriage/divorce plans, all residences worldwide, current and all past residences in the U.S., and current and past employment in the U.S. and abroad. If you have traveled through any of the eight countries since March 2011, be ready to explain the purpose of those trips. Request an interpreter if you are not completely fluent in English. These are legal proceedings; you need to fully understand the questions and be able to provide truthful, succinct, and precise responses.

Maintenance of status for LPRs is always an issue so be prepared to address when returning to the U.S. Maintenance of status includes having the intent to reside permanently in the U.S. Factors CBP considers in evaluating that intent include: where a person works; presence of property ties, family ties, and a permanent address in the U.S.; frequent and prolonged absences from the U.S.; travel plans directly to/from the U.S.; having a U.S.-based driver’s license and Social Security card; and filing U.S. income tax returns as a resident. It may be helpful to carry some evidence to support these factors when returning to the U.S.  Subject to the advice of a qualified immigration attorney, LPRs should not voluntarily abandon their status nor sign Form I-407 (Record of Abandonment of Lawful Permanent Resident Status) if asked to do so by an immigration officer.


Q: Can I Still Renew My Non-Immigrant Visa Without Appearing For an Interview? 

Probably.  The Visa Interview Waiver Program (“VIWP”), which is used to waive the interview requirement for low-risk travelers, has been constricted but not suspended.  Individuals are still eligible for VIWP if they are (1) renewing a non-immigrant visa in the same classification that is still valid or a visa that has expired within the last 12 months (previously 48 months); or (2) are under 14 or over 79 years of age.  We don’t expect the constriction of VIWP to have a major effect on visa interview wait times at overseas embassies and consulates.

[Note: The Visa Interview Waiver Program is different from the “Visa Waiver Program” (“VWP”). The VWP facilitates travel without a visa by nationals of certain countries.  The Executive Order has no effect on the VWP.]


Q: How Will the Travel Ban Affect Adjudications by the United States Citizenship and Immigration Service?

USCIS previously announced that most adjudications of petitions and applications are unaffected by the Travel Ban, regardless of the nationality of the petitioner or beneficiary.  The Travel Ban may affect applications or petitions of nationals from impacted countries located outside of the United States where the approval directly confers travel authorization.  This does not apply to the overwhelming majority of USCIS applications and petitions, and primarily relates to refugee.


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