Siskind Summary – September 24, 2017 Proclamation Expanding the Travel Ban

Posted on: September 24th, 2017
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By Greg Siskind (gsiskind@visalaw.com)

[This was posted very shortly after the proclamation was issued. There are parts that are confusing and I am seeking clarification to make any necessary corrections. Thanks.]

The White House states that it’s March 6, 2017 call for information sharing requirements to be met for countries to avoid being included in the travel ban. According to the Administration, several countries are deficient with respect to their identity-management and information-sharing capabilities, protocols and practices. Some countries have also been deemed to have a “significant terrorist presence” within their country. Therefore, the President is imposing various restrictions on the entry into the US of nationals from these countries.

Section 1. Policy and Purpose. US policy is to protect citizens from terrorist attacks and public-safety threats. Visa processing with adequate screening and vetting is critical.

Information-sharing and identity-management protocols by foreign governments are important parts of this.

As part of Executive Order 13780, the President ordered a worldwide review to identify what additional information would be needed from foreign governments to determine if individuals pose a security or public safety threat. That resulted in a July 9, 2017 review that created a baseline for reviewing threats with three categories of criteria:

  • Identity-management information – the US expects foreign governments to provide information needed to determine whether applicants are who they claim to be;
  • National security and public-safety information – the US expects foreign governments to provide information about whether people seeking entry pose national security or public-safety risks;
  • National security and public-safety risk assessment – this category focuses on national security risk indicators and include whether a country is a known or potential terrorist safe haven, whether it is in the Visa Waiver Program and whether it fails to receive its national subject to final orders of removal from the US.

The review identified 16 countries as being “inadequate” based on the three categories and another 31 as being “at risk” of becoming inadequate based on the criteria.

The White House claims that the 50-day engagement period caused many countries to improve their cooperation with the US.

DHS has determined that the following countries continue to have “inadequate” ID management and information sharing practices such that entry restrictions and limits are recommended: Chad, Iran, Libya, North Korea, Syria, Venezuela and Yemen. Iraq missed the baseline as well, but DHS is not recommending inclusion with the others, but Iraqi nationals would still be subject to additional scrutiny if they pose a security or safety risk. Somalia was also identified as problematic.

With respect to the countries identified, the restrictions on travel apply to all immigrants – both green card holders and nonimmigrants. But the restrictions apply differently depending on the particular country and type of visa.

Somalia (not listed on the list of 7) – while it is sharing information, it is unable to consistently cooperate and has terrorist threats emanating from its territories. Therefore, entry restrictions for nationals of Somalia are being imposed.

Section 2. Suspension of Entry for Nationals of Countries of identified Concern.

Chad – Has shown a willingness to improve, but doesn’t adequately share public-safety and terrorism information and terrorist groups are active in the country. The entry of immigrants is suspended. The entry of B-1 business visitors, B-2 tourists and B-1/B-2 nonimmigrants is suspended.

Iran – Iran fails all tests. The entry of immigrants and all nonimmigrants except F and M students and J-1 exchange visitors is suspended. F, M and J nonimmigrant applicants will be subject to enhanced screening and vetting requirements.

Libya – Libya, while an important and valuable counterterrorism partner, faces significant challenges in all three criteria. The entry of immigrants is suspended. The entry of B-1 business visitors, B-2 tourists and B-1/B-2 nonimmigrants is suspended.

North Korea – North Korea doesn’t cooperate in any respect and fails all tests. The entry of all immigrants and nonimmigrants is suspended.

Syria – Syria regularly fails to cooperate and does not meet any of the criteria. The entry of all immigrants and nonimmigrants is suspended.

Venezuela – Venezuela is uncooperative in verifying whether its citizens pose national security or public-safety threats. But there are alternative sources for obtaining information to verify ID. The restrictions therefore focus on government officials. The entry into the US of officials of government agencies involved in screening and vetting procedures – including the Ministry of the Popular Power for Interior, Justice and Peace; the Administrative Service of Identification, Migration and Immigration; the Scientific, Penal and Criminal Investigation Service Corps; the Bolivarian National Intelligence Service; and the Ministry of the Popular Power for Foreign Relations – and their immediate family members, as nonimmigrants on B-1, B-2 and B-1/B-2 visas is suspended. Nationals of Venezuela who are visa holders should be subject to appropriate additional measure to sure traveler information remains current.

Yemen – Yemen, while an important and valuable counterterrorism partner, faces significant challenges in all three criteria. The entry of immigrants is suspended. The entry of B-1 business visitors, B-2 tourists and B-1/B-2 nonimmigrants is suspended.

Somalia – The entry of immigrants is suspended. Nonimmigrants are subject to additional scrutiny to determine if applicants are security or safety threats.

Section 3. Scope and Implementation of Suspensions and Limitations.

The proclamation applies to people from designated countries who

  • Are outside the US later than 3:30 eastern time on September 24, 2017;
  • Do not have a valid visa on that date; and
  • Do not qualify for a visa under Section 6(d) of this proclamation.

Exceptions – The suspension of entry pursuant to section 2 of this proclamation shall not apply to:

  • Any lawful permanent residents of the US (this directly contradicts descriptions in various country outlines);
  • Any foreign national who is admitted to or paroled into the US on or after the applicable effective date;
  • Any foreign national who has a document other than a visa – such as a transportation letter or advance parole document – valid on the effective date;
  • Any dual national of a country designated under section 2 when the individual is traveling on a passport issued by a non-designated country;
  • Any foreign national traveling on a diplomatic or diplomatic-type visa, NATO visa, C-2 via for travel to the UN, or G-2, G-2, G-3, or G-4 visa; or
  • Any foreign national who has been granted asylum to the US; any refugee who has already been admitted to the US; or any individual who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture.

Waivers. A consular officer or CBP may, in their discretion, grant waivers on a case-by-case basis to permit entry if the following criteria are satisfied:

  • Denying entry would cause undue hardship;
  • Entry would not pose a threat to the national security or public safety of the US; and
  • Entry would be in the national interest.

A waiver will allow for issuance of a visa, but will leave unchanged all other requirements for entry or admission. Examples of situations that might be appropriate for consideration of a waiver include

  • The foreign national has been previously admitted to the US for a continuous period of work, study or other long-term activity and is seeking to reenter the US to resume that activity and denying reentry would impair that activity;
  • The foreign national has previously established significant contacts within the US but is outside the US on the effective date for work, study or other lawful activity;
  • The foreign national seeks to enter the US for significant business or professional obligations and the denial of entry would impair those obligations;
  • The foreign national seeks to enter the US to visit or reside with a close family member (e.g. spouse, child or parent) who is a US citizen, green card holder or alien on a nonimmigrant visa and denial would cause the foreign national undue hardship;
  • The foreign national is an infant, young child or adoptee, an individual needing urgent medical care, or someone whose entry is otherwise justified by the special circumstance of the case;
  • The foreign national has been employed by, or on behalf of, the US government;
  • The foreign national is traveling for purposed related to certain international organizations;
  • Canadian permanent residents;
  • Foreign nationals traveling as a US government-sponsored exchange visitor; or
  • The foreign national is traveling to the US at the request of a US government department or agency for law enforcement, foreign policy or national security reasons.

Section 4. Adjustments to and Removal of Suspensions and Limitations.

DHS and the State Department will devise a process to assess whether the suspensions should be continued for each country. A report will be submitted with recommendations every 180 days. DHS, State, DOJ, the Director of National Intelligence and other agencies shall engage with listed the countries.

Section 5. Reports on Screening and Vetting Procedures.   

DHS, in coordination with State, the AG, the Dir. of National Intelligence shall submit periodic reports that

  • Describe the steps the US government has taken to improve vetting for nationals of all foreign nationals;
  • Describe the scope and magnitude of fraud, errors, and unverifiable claims made in applications for immigration benefits;
  • Evaluate the procedures related to screening and vetting established by State Department

The first report will be submitted within 180 days and the second with 270 days of the first report; annually after that.

Section 6. Enforcement. No immigrant or nonimmigrant visa issued before the applicable date under Section 7 shall be revoked. Individuals with visas revoked based on the January 27th Executive Order shall be entitled to a travel document. Admitted refugees and granted asylees not covered.

Section 7. Effective dates.

  • Section 2 effective 3:30 eastern time on September 24, 2017 for people who were subject to entry restrictions from the January EO and who lack a credible claim of a bona fide relationship with a person or entity with a person or entity in the US.
  • Section 2 effective date for all other person is 12:01 am eastern time on October 18, 2017 including nationals of Iran, Libya, Syria, Yemen and Somalia who have a credible claim of a bona fide relationship with a person or entity in the US and Chad, North Korea and Venezuela.

Section 8. Severability. If any provision is held invalid, the remainder of the proclamation shall not be affected; and if any provision of the proclamation is held to be invalid because of the lack of certain procedural requirements, the relevant officials shall implement those requirements to conform with existing law and with any applicable court orders.

Section 9. General Provisions.

The proclamation shall be implemented consistent with applicable law and subject to the availability of appropriations.