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A New Travel Ban

In a conspicuous effort to restrict immigration to the United States under the veil of national security concerns, the Trump Administration has added six additional countries to the Travel Ban. These countries include Eritrea, Kyrgyzstan, Myanmar (Burma), Sudan, Tanzania, and Nigeria, which has Africa’s largest economy and population. The Proclamation cites to concerns that these nations do not adhere to identity verification and information-sharing regulations established by the Department of Homeland Security (DHS) in Executive Order 13780 designed to “facilitate accurate and fair admissibility decisions under the Immigration and Nationality Act.” The Administration has stated that the new countries added to the Ban will have the opportunity to show improvements in their security measures during a 180 day period. If the improvements meet the DHS standard, the ban could be lifted for nationals of that country, due to their willingness to work with the United States.

The current Travel Ban applies to individuals who 1) are outside of the United States on the effective date (January 31, 2020 or February 21, 2020); 2) did not have a valid visa at the time of the effective date and 3) do not have a waiver or any other travel documents. As opposed to the previous Travel Ban that affected both nonimmigrant and immigrant visas, the new Travel Ban imposes these restrictions only on immigrant visas, including individuals seeking to become U.S. permanent residents and green card holders. The Administration’s reason for this distinction is that it is more difficult to remove immigrants from the U.S. once they are lawfully admitted versus removing nonimmigrants. Therefore, B-1/B-2 visitors, F-1 students, non-immigrant workers on H-1B, L-1 and E visas, and all other categories of nonimmigrants coming to the United States temporarily from the six countries mentioned above are not directly affected by the new Travel Ban.

The chart below describes the effects of the Travel Ban on individuals from all 13 countries:

Exceptions to the Travel Ban:

  • – Any national who was in the U.S. and who had a visa on the effective date of the Proclamation, regardless of immigration status
  • – Legal Permanent Residents
  • – Diplomats traveling on NATA, C-2/UN, G-1, G-2, G-3, or G-4 visas
  • – Individuals traveling on advance parole, transportation letters, or boarding “foils” valid on/after the applicable effective date, that allow travel to the U.S.
  • – Refugees already in the U.S.
  • – Asylees granted asylum by the U.S.
  • – Individuals granted withholding, advance parole, or protection based on the Convention Against Torture

Waivers:

A foreign national may obtain a waiver is they are able to demonstrate one or more of the following:

  • – Denying entry would cause the foreign national undue hardship
  • – Entry would not pose a threat to the national security or public safety of the U.S.
  • – Entry would be in the national interest

However, it is important to note that the rate at which waiver requests are being approved and granted is exceptionally low. More than 98% of waiver applications have been rejected. Additionally, being “granted” a waiver does not ensure that an applicant has “received” a waiver, making the possibility of receiving a waiver under the Travel Ban slim and ambiguous.

Employers should determine whether their employees are subject to the Proclamation and whether the new restrictions will have an impact on their businesses. Any foreign national that may be impacted by the Travel Bans should also determine whether any action needs to be taken. If you have any questions about how the Travel Ban may impact you, contact an experienced immigration attorney at Minsky McCormick & Hallagan, P.C.

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