On October 17, 2017, federal judge Derrick Watson of the U.S. District Court for the District of Hawaii, issued a temporary restraining order preventing the government from enforcing Sections 2(a), (b), (c), (e), (g), and (h) of the Presidential Proclamation 9645, “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or other Public-Safety Threats” signed by the President on September 24, 2017. These sections of the Presidential Proclamation were to be enforced at 12:01 a.m. eastern daylight time on October 18, 2017.
As a result, foreign nationals from Chad, Iran, Libya, Syria, Yemen, and Somalia will NOT be affected by the restrictions outlined in the Presidential Proclamation and may continue to travel freely to the United States. Visa applications for these countries will continue to be adjudicated in accordance with existing immigration law, and visa processing standards, irrespective of the restrictions outlined in the Presidential Proclamation.
However, the court order does not prevent the government from implementing restrictions on foreign nationals from North Korea and Venezuela. In addition, the order does not prevent the government from scrutinizing the adjudication of visas for Iraqi nationals and their admittance to the United States. Sections (d) and (f) of the Proclamation, outline the provisions that remain in force. Restrictions on the entry of foreign nationals from North Korea, Venezuela, and Iraq began on Wednesday, October 18, 2017 and will continue until further notice. The restrictions on Venezuela as you will see below are the most lenient of the restrictions.
Restrictions on North Korean nationals: Entry of foreign nationals from North Korea has been suspended for all immigrants and non-immigrants (including diversity visa holders).
Restrictions on Venezuelan nationals: Entry of government officials from the following agencies: Ministry of Interior, Justice, and Peace; the Administrative Service of Identification, Migration, and Immigration; the Corps of Scientific Investigations; Judicial and Criminal; the Bolivarian Intelligence Service; and the People’s Power Ministry of Foreign Affairs, and of their immediate family members, is suspended for nationals traveling on B-1, B-2, or B-1/B-2 visas. No other restrictions have been imposed.
Iraqi nationals: Per the Presidential Proclamation, DHS has recommended that Iraqi nationals be more heavily scrutinized when seeking entry to the United States. This means that although Iraqi nationals are not prevented from seeking admission to the United States, they may be subject to further questioning at U.S. ports of entry, and when applying for any immigration benefit with USCIS or a U.S. Embassy or Consulate abroad. Permanent residents who are nationals of Iraq will not be affected.
Before the Court Order, Travel Ban 3.0 was to be implemented in 2 phases:
Phase 1: Was to begin at 3:30 p.m. EDT on Sunday, September 24, 2017 until 12:01 a.m. EDT on Wednesday, October 18, 2017, and applied to foreign nationals from Iran, Libya, Syria, Yemen, and Somalia
Per the Proclamation:
a) Nationals of Iran, Libya, Syria, Yemen, and Somalia. Nationals of these five countries will generally remain under suspension of travel except for those individuals who have credible claim of a “bona fide relationship” with a close family member or entity in the United States. “Close family” is defined as a parent, including parent-in-law, spouse, fiancé, child, adult son or daughter, son-in-law, daughter-in-law, sibling, brother-in-law, sister-in-law, grandparent, grandchild, aunt, uncle, niece, nephew, and first-cousin. For all relationships, half or step status is included (e.g., “half-brother” or “step-sister”). “Close family” does not include any other “extended” family members. A credible claim of a bona fide relationship with a “U.S. entity” must be formal, documented, and formed in the ordinary course rather than for the purpose of evading suspension of entry under the Proclamation. If the national does not qualify for this exemption, they may be eligible for other exceptions or waivers listed in the Proclamation.
b) Nationals of Sudan. As of 3:30 p.m. EDT on Sunday, September 24, 2017, Sudanese nationals are no longer subject to travel restrictions.
Phase 2: Was to begin at 12:01 a.m. EDT on Wednesday, October 18, 2017 and applied to foreign nationals from Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen and Somalia.
The exceptions and waivers listed in the Proclamation are applicable for qualified applicants, but the bona fide relationship exception is no longer applicable.
U.S. Consulates and Embassies will not cancel previously scheduled visa application appointments. In accordance with all applicable court orders, executive orders, and proclamations, for nationals of the eight designated countries, a consular officer will make a determination in the course of the interview whether an applicant otherwise eligible for a visa is exempt from the Proclamation or, if not, is eligible for a waiver under the Proclamation, and may be issued a visa. The Proclamation provides specifically that no visas issued before its effective date will be revoked pursuant to the Proclamation.
Frequently Asked Questions
Q: Are there any exceptions in the Presidential Proclamation?
A: The following foreign nationals are exempted from all travel restrictions outlined in the Presidential Proclamation:
a) Any national who was in the United States on the applicable effective date of the Presidential Proclamation for that national, regardless of immigration status;
b) Any national who had a valid visa on the applicable effective date of the Presidential Proclamation for that national;
c) Any national whose visa was marked revoked or marked canceled as a result of Executive Order 13769 who qualifies for a visa or other valid travel document under section 6(d) of the Presidential Proclamation;
d) Any lawful permanent resident (LPR) of the United States;
e) Any national who is admitted to or paroled into the United States on or after the applicable effective date of the Presidential Proclamation for that national;
f) Any applicant who has a document other than a visa, valid on the applicable effective date of the Presidential Proclamation for that applicant or issued on any date thereafter, that permits him or her to travel to the United States and seek entry or admission, such as advance parole;
g) Any dual national of a country designated under the Presidential Proclamation when traveling on a passport issued by a non-designated country;
h) Any applicant traveling on a diplomatic (A-1 or A-2) or diplomatic-type visa (of any classification), NATO-1 -6 visas, C-2 visa for travel to the United Nations, or G-1, G-2, G-3, or G-4 visa; except certain Venezuelan government officials and their family members traveling on a diplomatic-type B-1, B-2, or B1/B2 visas
i) Any applicant who has been granted asylum; admitted to the United States as a refugee; or has been granted withholding of removal, advance parole, or protection under the Convention Against Torture.
Phase 1:
The Presidential Proclamation has allowed an exception for applicants from five countries listed in the original travel ban (Executive Order 13780) including Iran, Libya, Syria, Yemen, and Somalia, who have a credible claim of a bona fide relationship with a person or entity in the United States.
In all visa adjudications, consular officers may seek additional information, as warranted, to ensure underlying relationships are bona fide, rather than being established for the purpose of unlawfully obtaining a visa, including by evading the Presidential Proclamation
Phase 2:
Qualified applicants from the eight countries may qualify for an exception or waiver however, the exception for those claiming close relationships with U.S. persons or entities is no longer available.
Q: Does the Proclamation apply to dual nationals?
A: No, so long as the foreign national is traveling on a passport of a non-designated country.
DHS has advised: “Our embassies and consulates around the world will process visa applications and issue nonimmigrant and immigrant visas to otherwise eligible visa applicants who apply with a passport from a non-designated country, even if they hold dual nationality from one of the eight restricted countries.”
Q: Does the Proclamation apply to Lawful Permanent Residents (Green Card Holders)?
A: No, lawful permanent residents remain unaffected.
Q: Are Permanent Residents of Canada affected by the Proclamation?
A: Permanent residents of Canada, who are nationals of one of the eight countries subject to restrictions, may be granted a case-by-case waiver in accordance with the consular officer’s discretionary authority. Canadian permanent residents applying for a visa at a U.S. consular section in Canada should bring proof of their status to a consular officer. The consular officer will then determine whether the applicant is affected by the Proclamation, and if they are affected, whether they quality for an exception or a waiver.
Q: Are waivers available for those affected?
A: Consular officers may issue visas to affected foreign nationals on a case-by-case basis when they determine: that issuance is in the national interest, the applicant poses no national security or public safety threat to the United States, and denial of the visa would cause undue hardship.
Q: What is a close familial relationship for the purposes of determining if someone is subject to the Proclamation during Phase 1 of implementation?
A: “Close family” is defined as a parent, including parent-in-law, spouse, fiancé, child, adult son or daughter, son-in-law, daughter-in-law, sibling, brother-in-law, sister-in-law, grandparent, grandchild, aunt, uncle, niece, nephew, and first-cousin. For all relationships, half or step status is included (e.g., “half-brother” or “step-sister”). “Close family” does not include any other “extended” family members. A credible claim of a bona fide relationship with a “U.S. entity” must be formal, documented, and formed in the ordinary course rather than for the purpose of evading suspension of entry under the Proclamation.
Q: Can I qualify for a visa if I require urgent medical care in the United States?
A: Applicants who are otherwise qualified and seeking urgent medical care in the United States may be eligible for an exception or a waiver. An applicant who wishes to apply for an exception or a waiver should apply for a visa and disclose during the visa interview any information that might qualify the individual for an exception or a waiver. A consular officer will carefully review each case to determine whether the applicant is affected by the Proclamation, and if so, whether the case qualifies for an exception or a waiver.
An individual is typically eligible for a waiver only when: the visa issuance is in the national interest, the applicant poses no national security or public safety threat to the United States, and denial of the visa would cause undue hardship.
Q: I’m a student or short-term employee that was temporarily outside of the United States when the Proclamation went into effect. Can I return to school/work?
A: If you have a valid, unexpired visa and are outside the United States, you can return to school or work per the exception noted in the Proclamation.
In Phase 1 implementation only: If you do not have a valid, unexpired visa, the Proclamation has allowed a delayed implementation for applicants who a credible claim of a bona fide relationship with a person or entity in the United States. One example cited in the Supreme Court’s decision was a student from a designated country who had been admitted to a U.S. university, thereby demonstrating a credible claim of a bona fide relationship with an entity in the United States. An individual who wishes to apply for a nonimmigrant visa should apply for a visa and disclose during the visa interview any information that might demonstrate that he or she is eligible for this exception.
In Phase 2 implementation: If you do not have a valid, unexpired visa and do not qualify for an exception you will need to qualify for the visa and a waiver. The bona fide relationship exception is not applicable. An individual who wishes to apply for a nonimmigrant visa should apply for a visa and disclose during the visa interview any information that might demonstrate that he or she is eligible for a waiver per the Proclamation. A consular officer will carefully review each case to determine whether the applicant is affected by the Proclamation, and, if so, whether the case qualifies for a waiver.
For more information please click here to read the DHS fact sheet.