December 08, 2017
Minsky, McCormick & Hallagan
On Monday, December 4, 2017, the Supreme Court allowed the Trump Administration to begin enforcing the current version of the travel ban, Executive Order 3 (“EO-3”), denying visas and entry to citizens of eight mostly Muslim-majority countries. The countries affected are Iran, Libya, Somalia, Syria, Yemen, Chad, North Korea and Venezuela. The Supreme Court decision is not a final determination of the travel ban’s constitutionality; that question is still being argued in the lower courts, and will eventually be heard by the Supreme Court.
The Trump Administration announced the third version of the travel ban on September 24, 2017. Almost immediately, two lawsuits were filed in Hawaii and Maryland, arguing that by discriminating against Muslim-majority countries, the government is favoring one religion over others, and therefore violating the Constitution. Both district courts agreed to enter injunctions to prevent the travel ban from going into effect while the cases were being litigated. The Fourth Circuit later upheld a partial injunction. Monday’s Supreme Court decision removed the injunctions, allowing the travel ban to be enforced.
The brief, one-page decisions gave little insight into the Court’s thought process, besides noting that Justices Ruth Bader Ginsburg and Sonia Sotomayor would have denied the government’s request for a stay. The fight over the merits of the travel ban will take place first in the Fourth and Ninth Circuits, where the lawsuits were filed, and then in the Supreme Court, which could hear the case as early as summer 2018.
Who does EO-3 apply to?
Individuals who are:
- (i) outside of the U.S. on or after December 4, 2017, and
- (ii) do not have a valid visa on December 4, 2017, and
- (iii) do not have a waiver under Section 3(c) of the Proclamation
- Note, the State Department has clarified that it “will not cancel previously scheduled visa application appointments. In accordance with the Presidential Proclamation, for nationals of the eight designated countries, a consular officer will make a determination whether an applicant otherwise eligible for a visa is exempt from the Proclamation or, if not, may be eligible for a waiver under the Proclamation and therefore issued a visa.”
The ban does NOT apply to:
- Lawful permanent residents (green card holders);
- Dual-nationals traveling on a passport from a non-designated country;
- Individuals granted asylum;
- Refugees already admitted to the U.S.; or
- Individuals granted withholding of removal, advance parole, or protection under the Convention against Torture
- The State Department has also clarified that “No visas will be revoked pursuant to the Proclamation. Individuals subject to the Proclamation who possess a valid visa or valid travel document generally will be permitted to travel to the United States, irrespective of when the visa was issued.”
What visas are suspended under EO-3?
- Iran: immigrant and nonimmigrant visas except for F, J, or M visas, subject to heightened screening
- Libya, Yemen, and Chad: immigrant and nonimmigrant business or tourist visas (B-1, B-2, B-1/B-2)
- Syria and North Korea: immigrant and nonimmigrant visas.
- Venezuela: The entry of officials of government agencies of Venezuela involved in screening and vetting procedures and their immediate family members, as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas, is suspended. Additionally, nationals of Venezuela who are visa holders are subject to additional measures. Diplomatic visas are not affected.
Unlike earlier versions of the travel ban, this Executive Order is designed to be in place indefinitely.
Who is eligible for a waiver?
Waivers may be granted on a case-by-case and discretionary basis. The person seeking a visa and admission to the US must prove that:
- denying entry to the U.S. would cause the foreign national undue hardship;
- admission would not pose a threat to the national security or public safety of the United States;
- entry would be in the U.S. national interest.
If you have a question about how the Travel Ban will affect you, your family, or your business, please schedule a consultation with our attorneys.