Travel Ban 3.0 (update)

Following legal challenges partially blocking President Trump’s first two travel bans, on September 24, 2017, President Trump announced a new version, commonly being referred to as “Travel Ban 3.0.”   It was largely blocked one day before taking effect on October 18, 2017, by two separate decisions by the Federal District Courts of Hawai’i and Maryland.   These decisions were temporary, pending December hearings on the legal challenges.

On November 13, 2017, the 9th Circuit Court of Appeals allowed parts of Travel Ban 3.0 to go into effect while the legal challenges run their course.

Current state of play (Note: this is not intended to be a substitute for individualized legal advice).

The following people from the targeted countries will not be issued immigrant (permanent residency) or nonimmigrant (temporary stay) visas or be allowed to enter the U.S.,  unless they can prove a “credible claim of a bona fide relationship with a person or entity” in the U.S., as explained further below:

  • Chad, Libya and Yemen: All immigrants and, nonimmigrant visitors for pleasure or business.
  • Iran: All immigrants and nonimmigrants, with the exception of student and exchange (F, M and J) nonimmigrant visa holders (who nonetheless will undergo extra scrutiny).
  • North Korea and Syria: All immigrants and nonimmigrants.
  • Somalia: All immigrants. All nonimmigrants will be subject to extra scrutiny.
  • Venezuela: Certain government officials and their family members, traveling on visitor or other non-diplomatic nonimmigrant visas.

The ban applies to people from the named countries who were outside the U.S. and did not have valid, previously issued U.S. visas on the ban’s effective date.  It does not apply to:

  • Dual nationals using the passport of their non-targeted country.
  • U.S. Permanent residents (green card holders), or those who already have refugee, asylee, or withholding of removal status in the U.S., who are from the targeted countries and are returning from travel abroad.
  • Diplomats or those with similar visas.

Waivers of the ban may be issued if determined to be in the national interest, among other criteria.  As a practical matter, waivers will be virtually impossible to get.

A “bona fide relationship with a person or entity” in the U.S. in the family context should include: parents, spouses, children of any age, siblings and half-siblings, and these step-relationships, as well as fiancée(e)s, sons and daughters-in-law, grandparents, grandchildren, brothers and sisters-in-law, aunts, uncles, nieces nephews, nieces and cousins.

A “bona fide relationship” with an entity should include students accepted to study at U.S. educational institutions, persons offered employment at U.S. employers, and those invited to attend conferences or to speak at lectures, etc. However, the definition currently excludes those accepted for resettlement by a U.S. refugee resettlement agency who have not yet received their refugee visas to travel to the U.S.

How does this effect Maine businesses?

  • It is unclear how generously the government will interpret the exception for those with a bona fide relationship to an “entity.”   Universities and businesses hoping to bring a national of one of the targeted countries to the U.S. to lecture, study, present at a conference, or to work, should expect the visa issuance process to take longer than usual, and should work with an experienced immigration attorney.
  • Any employees from the specified countries, whether naturalized U.S. Citizens, permanent residents, refugees, asylees, or nonimmigrants with unexpired visas,  can expect a heightened level of questioning at U.S. ports of entry following any travel abroad, despite the fact that Travel Ban 3.0 is not supposed to apply to them.  They should be advised to consult with a competent immigration attorney before traveling abroad.
  • If you have immigrant employees from any of the named countries, be aware of their fear and worry that their relatives, whom they might have been expecting to immigrate soon, may not be able to come, despite the exception to the travel ban for those with family members already in the U.S. under the current injunction.
  • If you have an employee who needs to renew her/his work visa abroad, the process may be more complicated and take much longer than usual because of the need for an in-person interview at the relevant U.S. consulate.