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U.S. Supreme Court Upholds Trump Travel Ban U.S. Supreme Court Upholds Trump Travel Ban

U.S. Supreme Court Upholds Trump Travel Ban

The Justices of the U.S. Supreme Court issued a 5-4 majority opinion, upholding the constitutionality of President Trump’s Proclamation banning travel to the U.S. by certain foreign nationals. There have been three versions of the travel ban issued and litigated since March 2017, with details of the latest ban contained in a Presidential Proclamation issued by President Trump in September 2017. The country of Chad has since been removed from the ban via an amendment to the Proclamation added in April 2018. However, the Proclamation, as amended and now ruled constitutional by SCOTUS in the recent Trump v. Hawaii case, confirms the President’s broad authority to restrict travel to the U.S. and continues to impose heavy restrictions on travel to the U.S. by certain nationals of the following countries for the purposes listed below:
Iran Immigrant, Visitor, Nonimmigrant[1]
Iraq Enhanced Screening
Libya Immigrant, Visitor
North Korea Immigrant, Visitor, Nonimmigrant
Somalia Immigrant, Enhanced Screening
Syria Immigrant, Visitor, Nonimmigrant
Venezuela Visitor[2]
Yemen Immigrant, Visitor
As the Proclamation stands, “Immigrant” travel to the U.S. (e.g. those making initial entries to the U.S. as permanent residents following immigrant visa issuance abroad) is banned for nationals of all listed countries except Venezuela and Iraq.  “Nonimmigrant” travel includes travel for foreign nationals with permission to enter and reside temporarily in the U.S. (e.g. F-1, H-1B, L-1, etc.). Such travel is banned for nationals of Iran, North Korea and Syria. Foreign nationals applying for entry as a B-1/B-2 Visitor from all countries listed (except Iraq) are currently banned from the U.S. The Proclamation specifically exempts from the ban foreign nationals who are U.S. Lawful Permanent Residents and those who are holders of certain travel documents such as a valid Advance Parole document, as well as those foreign nationals who have been granted asylum.

Exceptions to the ban include foreign nationals of listed countries who hold dual citizenship and travel on a passport of a non-designated country. Those traveling with a diplomatic or NATO visa are also exempt. For those impacted by the ban who do not qualify for exemptions or exceptions, waivers may be submitted and considered by U.S. Customs and Border Patrol or its agencies. Waivers to the ban will be decided based on existence of hardship, proof the entry risks no security threat to the U.S. and proof the entry is in the national interest to the U.S.

In addition to intense debate over the constitutionality of the country-specific restrictions, the minority opinion of the Court relayed concern over the feasibility of the highly intricate network of exemptions and exceptions outlined in the Proclamation. Such insight should be noted and observed by travelers who remain subject to the ban, as the standards listed in the Proclamation to be applied by U.S. CBP and its representative agencies have been historically very difficult to meet.

The revised Proclamation now upheld by the Court’s ruling states that no visas will be revoked as a result of the ban, yet it also states travelers of the listed countries holding a valid visa issued prior to the date of the Proclamation will “generally” be permitted to enter the United States. Entry to the U.S. is not guaranteed for any foreign national traveler, so travelers impacted by the ban possessing a valid visa and planning travel should carefully consider plans to travel to the U.S.

As a result of this ruling, changes to the travel ban in the form of amendments or additions of countries or types of travel are now possible. The Court’s ruling expressly reserved broad authority for the President to curtail specific travel to the U.S. in the interest of national security.  We will continue to monitor the information released by the State Department as to the current status of the travel ban and how it will continue to be applied or amended in light of this SCOTUS decision.

We continue to recommend foreign nationals from the affected countries consult with immigration counsel well in advance of any international travel needs. If you have questions related to the travel ban or any other immigration needs, please contact Jenifer M. BrownChristl Glier or Kristin Kelley.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.
[1] Except F, J and M visa holders who are subject to enhanced screening.
[2] Certain Government Officials’ entry is suspended, along with their family members entering as visitors.
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