On Tuesday, June 26, 2018, the Supreme Court upheld President Trump’s travel ban.
The Court addressed the legality of the Presidential Proclamation issued on September 24, 2017 entitled, Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats. This is the third and current version of President Trump’s original travel ban issued in January 2017. Our previous updates regarding the travel ban can be found here.
In a 5-4 decision, the Court held that the President’s current travel ban does not violate the constitution or federal immigration laws. The majority wrote that the Proclamation is “expressly premised on legitimate purposes: preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their practice” and “says nothing about religion.” The Court found that the travel restrictions are justified by the government’s national security concerns, reasoning that the Proclamation “reflects the results of a worldwide review process undertaken by multiple Cabinet officials and their agencies.” The Court’s decision affirmed the President’s broad authority over immigration and national security matters, stating that the travel ban falls within the President’s ability to suspend the entry of all or certain classes of foreign nationals if he deems that their entry would be “detrimental to the interests of the United States.”
The current travel ban in effect since December 8, 2017, places varying degrees of restrictions on the entry into the United States on certain citizens of these seven countries: Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen. Citizens of Chad and Iraq were targeted in prior iterations of the travel ban, but both were later removed.
The restrictions only apply to nationals of the designated countries who were outside the United States when the travel ban took effect; did not have a valid visa when the travel ban took effect; and do not qualify for reinstatement of their visa or travel document revoked under the President’s Executive Order issued in January 2017.
Specific Restrictions by Country
The travel ban suspends visa issuance and U.S. entry for individuals in the following categories:
- Iran: All immigrants and all nonimmigrants except students (F, M visas) and exchange visitors (J visa).
- Libya: All immigrants as well as temporary nonimmigrant visitors on business or tourist visas B-1/B-2 visas).
- North Korea: All immigrants and nonimmigrants.
- Somalia: All immigrants. All nonimmigrants now require additional screening.
- Syria: All immigrants and nonimmigrants.
- Venezuela: Certain government officials on business or tourist visas (B-1/B-2 visas) and their family members.
- Yemen: All immigrants as well as temporary nonimmigrant visitors on business or tourist visas (B-1/B-2 visas).
Exemptions to the Travel Restrictions
The current travel ban does not apply to the following:
- Lawful permanent residents;
- Foreign nationals admitted to or paroled into the United States on or after the applicable effective date;
- Foreign nationals who have a document other than a visa such as a transportation letter, boarding foil, advance parole document that is valid on the applicable effective date or issued on any date thereafter;
- Dual nationals of a designated country who are traveling on a passport issued by a non-designated country;
- Foreign nationals traveling on a diplomatic visas, NATO visas, C-2/U.N. visas, or G-1, G2, G-3, or G-4 visa; or
- Foreign nationals granted asylum in the United States; refugees already admitted to the United States; or individuals granted withholding of removal, advance parole, or protection under the Convention Against Torture.
Availability of Waivers
The travel ban permits waivers on a case-by-case basis; however, the waivers are discretionary. The government may grant waivers if the foreign national has satisfactorily demonstrated that:
- Denying entry would cause undue hardship;
- Entry would not pose a threat to United States national security or public safety; and
- Entry would be in the United States national interest.
Circumstances where a waiver may be appropriate include foreign nationals previously admitted to the United States for work or study where the denial of reentry would impair that activity. Waivers issued by Consular Officers will be effective for both the issuance of a visa and any subsequent entry on that visa. To date, approximately 800 waivers have been granted.
The current travel ban has been in effect since December 8, 2017 when the Supreme Court permitted the Administration to enforce the ban while the courts addressed its legality. The Supreme Court’s new ruling will keep the existing travel restrictions in place, and therefore, does not alter any of the travel restrictions already in effect. The Court has remanded the case to the lower court for further processing consistent with its decision. We will continue to monitor and provide updates on any new developments regarding enforcement of the travel restrictions.