The Travel Ban Roller Coaster: The Ride's Not Over for Employers

Since taking office in January 2017, President Trump has issued three executive orders seeking to restrict nationals of certain countries from receiving visas and entering the United States. Ensuing lawsuits have resulted in a roller coaster of rulings by federal courts, dizzying even to those of us who practice immigration law. The ride is not over, unfortunately, and for many foreign nationals, this will mean continued uncertainty for some time.

Here is what foreign nationals – and their U.S. employers – need to know:

  • The president’s first and second travel bans are no longer on the table. The first was rescinded when the second was issued, and the second expired when the third – a “proclamation” – was issued on September 24, 2017.
  • The Supreme Court held in December 2017 that the administration may implement the ban in its entirety while challenges to it are considered by lower courts. The Court’s ruling from June 2017, which pertained to the second ban and blocked its implementation against those with “bona fide relationships” in the U.S., is superseded. There is no longer a “bona fide relationship” exception.
  • On January 19, 2018, the Court announced its ­intention to review Trump v. Hawaii, signaling its desire to settle the matter definitively. Oral arguments will likely occur in April, with a decision coming by the end of the Court’s session in June.
  • The ban is not as restrictive as earlier versions and is clearer about whom it applies to and who may seek waivers, as outlined below.

The ban does not apply to anyone who was physically in the United States as of October 18, 2017, or to anyone abroad on that date who already had a valid U.S. visa. While individuals in these protected cohorts are by no means guaranteed future visas or admission to the U.S., they cannot
be turned away based on the ban.

There is also a long list of individuals expressly exempt from the ban. These include U.S. permanent residents (i.e., green card holders), dual citizens presenting passports from a non-banned country, certain diplomats and international organization employees seeking A or G visas, those holding government-issued travel documents and asylees.

However, those abroad and without visas as of October 18, 2017, and not exempt, will be subject to the ban if their nationality and the type of visa they are requesting are among those restricted, as shown in the table, opposite.

The ban offers some hope to individuals with valid and compelling stories to tell, as anyone can request a visa appointment and ask for a waiver during their interviews at U.S. consulates. The standard for waivers is high: The ban loosens restrictions only for those whose travel is in the U.S. national interest, who pose no threat to national security or public safety, and who would suffer undue hardship if denied a visa.

Nevertheless, the ban provides numerous examples of persons who might qualify for a waiver. These include Canadian permanent residents; those pursuing important business or professional obligations or returning to their jobs, schools or certain exchange programs; immediate relatives of U.S. citizens and green card holders facing hardships; infants, young children and those needing urgent medical care; those attending meetings with the U.S. government or ­traveling on behalf of international organizations; and current and former valuable U.S. government employees.

Regardless of the ban, all applicants for visas and admission to the U.S. may be subject to heightened screening and corresponding delays. Prospective visa applicants from any one of the listed countries, even individuals not covered by the ban, should carefully consider the risks of delay before finalizing international travel plans. n

Andrew Greenfield is the managing partner of Fragomen’s Washington, D.C., office and a member of Fragomen’s Executive Committee. He advises organizations across industries on U.S. immigration and nationality law, regulation, policy and compliance. He counsels clients on visa/work permit matters; I-9/E-Verify, H-1B/LCA and PERM compliance and overall global immigration program management. He also advises international treaty organizations regarding the application and limitations of diplomatic privileges and immunities, related State Department law and policy, and U.S. work authorization and residency planning. Reach him at [email protected].

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