Supreme Court Allows Enforcement of Travel Ban 3.0

 In Travel Ban
On Monday, December 4, 2017, the Supreme Court of the United States issued two orders temporarily allowing the government to enforce the full set of restrictions imposed by President Donald Trump’s September 24 proclamation, commonly referred to as “Travel Ban 3.0.” The ban generally limits the entry into the United States of nationals from the following eight countries: Iran, Libya, Yemen, Somalia, Syria, North Korea, Venezuela and Chad. So what does this mean? Is Travel Ban 3.0 here to stay? And what does this mean for individuals from one of the eight named countries? Here are some of my observations on this important development in immigration law.

The Supreme Court has Spoken – Is Travel Ban 3.0 Legal?

Not necessarily. Monday’s decision does not mean that the Court believes that the ban is legal. It simply means that the government is allowed to enforce the ban while lower federal courts have a chance to decide whether it is legal. Depending on what happens in the lower courts, the case may go to the Supreme Court for a decision “on the merits.” What we do know, however, is that no court other than the Supreme Court can stop the ban at this point. The Court ruled that, even if the lower courts rule that the ban is illegal, the government may continue to enforce it as long as it files an appeal to the Supreme Court.

How Long will the Ban Last? 

Unlike earlier versions of the travel ban, Travel Ban 3.0 has no expiration date. The proclamation states that it will remain in effect until the named countries work to meet certain baseline security requirements set by the Department of Homeland Security. This is a subjective determination. Practically speaking, the ban will last as long as the government wants it to last.

Are there Exceptions to the Ban?

Yes. Travel Ban 3.0 does not apply to all individuals from all eight of the named countries. First, there are several exclusions and exceptions that apply regardless of nationality. These include:
  • One who is already in the United States on the effective date* of Travel Ban 3.0;
  • A holder of a visa that was valid as of the effective date* of Travel Ban 3.0;
  • Lawful permanent residents of the United States;
  • A foreign national who is admitted to or paroled into the United States on or after the effective date* of Travel Ban 3.0;
  • Certain holders of travel documents other than visas permitting travel to the United States;
  • Certain individuals with dual nationality;
  • Those traveling on a diplomatic or diplomatic-type visa;
  • Those granted asylum by the United States; any refugee who has already been admitted to the United States; or any individual who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture.
*Note: the effective date of Travel Ban 3.0 depends on the circumstances of the individual seeking entry.
Second, there are specific limitations to the ban for nationals from some countries:
  • Non-immigrants from Chad, Libya, Venezuela, and Yemen, may enter so long as they hold a valid visa other than a business (B-1), tourist (B-2), or business/tourist (B-1/B-2) visa.
  • Non-immigrants from Iran may enter on a valid student (F or M) and exchange visitor (J) visa.
  • There is no per se ban on non-immigrants from Somalia, although their visa adjudications will be subject to increased scrutiny.
  • Only nationals from Syria and North Korea are banned altogether, assuming no general exception applies.
Third, the proclamation allows for waivers under some circumstances.

What’s the Bottom Line?

If you are a national of one of the eight countries named in Travel Ban 3.0, you should not assume that you are banned from entering the United States. It is important to discuss your circumstances with an immigration attorney to determine whether the travel ban applies to you, whether an exception applies, or whether a waiver is worth pursuing.
You can read the full text of Travel Ban 3.0 and the court orders related to the ban by clicking on the links below:
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