Supreme Court Upholds Travel Ban – Implications for Employers

On June 26, 2018, the U.S. Supreme Court upheld the so-called Trump travel ban. Presidential Proclamation 9645, Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats, established an indefinite suspension on granting visas to persons from certain countries. The Court agreed that the President could exclude persons from certain countries on the basis of his decision that their entry would be detrimental to the United States. The Court’s decision also ratifies the elaborate system of exemptions and case-by-case waivers of inadmissibility that result from the ban. 

The ban is in effect now. However, persons with visas issued before September 24, 2017, the date of the Proclamation, still should be able to enter the United States, subject to some level of scrutiny on arrival. The practical impact and impending processing change is unclear, as the Supreme Court had allowed the ban to take effect in December 2017. 

Industries ranging from the tech sector to medical fields to hospitality may feel the impact of the travel restriction. Employers with personnel from the affected countries, particularly, Iran and Syria to which the some of the broadest restrictions apply, may be affected. Employees who need to travel internationally should anticipate experiencing greater delays – regardless of the country of nationality due to additional screening procedures. Employers concerned about how about the direct and indirect impact of the ban on their workforce should consult immigration counsel for additional guidance.

Countries and Visas Subject to the Ban

The Executive Order suspends entry to citizens and nationals from seven countries, since the Administrative removed Chad from the list:

• Iran;
• Libya;
• Somalia;
• Syria;
• Yemen;
• North Korea; and
• Venezuela.

It also has a limited impact on Iraqis in the form of heightened scrutiny at visa interviews. 

The ban impacts both temporary nonimmigrant visas, and immigrant visas for permanent resident status. Immigrant visas are granted to persons eligible for employment-based or marriage or other family-based permanent resident status and green cards. Nonimmigrant visas are available for temporary visits, including business, tourism, studying, research, cultural exchange, performances, and work for U.S. employers. B-1 is the nonimmigrant category of visas for business travel, including contract negotiations to buy or sell goods or services. B-2 is the category for tourism, family visits, and other limited activities.

Nationals of the designated countries are subject to travel restrictions contained in the Proclamation, which can be summarized as follows:

Work authorized nonimmigrant categories, such as H-1B foreign workers, L-1 intracompany transferee personnel, E 2 investors, J-1 exchange visitors, H-2B temporary workers, O-1 extraordinary ability personnel, and P-1 performers, are restricted only for three of the countries: Iran, Syria, and North Korea. Business visits and tourism are suspended for six countries -- all but Somalia. 

Immigrant visa processing is suspended for six countries -- all but Venezuela. Employment-based immigrant processing often takes years, due to the number of phases and level of scrutiny involved. Employers who have succeeded through one or two phases to sponsor a foreign worker for a green card could find that worker is unable to obtain the immigrant visa and green card due to the ban. During an immigrant visa interview, a consular officer will carefully review the case to determine whether the applicant is affected by the Proclamation and, if so, whether the case qualifies for an exception or may qualify for a waiver.

Exceptions to the Travel Ban

• Persons already in the United States are not required to depart under the travel ban. 
• Green card holders are exempt.
• Persons traveling with an advance parole document, typically, those with green card processing underway, should not be subjected to the ban.
• The ban does not apply to dual citizens traveling on the passport of a country other than one referenced in the ban. 
• Persons granted political asylum and refugees already admitted to the United States are exempt.

In addition, an employee or student temporarily outside of the United States when the Proclamation went into effect but with a valid, unexpired visa can return to school or work under an exception in the Proclamation.

Waivers

The State Department, which processes visas, and Customs and Border Protection (CBP), with immigration officials at land and airports of entry, are authorized to issue waivers in the national interest on a case-by-case basis in individual circumstances, such as the following:

• The person seeks to reenter the United States to resume an activity, and the denial of reentry would impair that activity;
• The person previously had established significant contacts with the United States;
• The person seeks to enter the United States for significant business or professional obligations and the denial of entry would impair those obligations;
• The person seeks to enter the United States to visit or reside with a close family member (e.g., a spouse, child, or parent) who is a United States citizen, lawful permanent resident, or alien lawfully admitted on a valid nonimmigrant visa, where the entry is otherwise permitted, and denial of entry would cause the foreign national undue hardship; 
• An infant, a young child or adoptee, or other individual needs urgent medical care, or
• Other special circumstances justify the entry.

There is no separate application for the waiver at this time. An individual who seeks to travel to the United States 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.

There are no special rules, exceptions or waivers for permanent residents of Canada. Under the Proclamation, waivers may not be granted categorically to any group of nationals who are subject to visa restrictions. Canadian permanent residents who apply for visas also may apply for a waiver. 

The State Department reports that from December 8, 2017 through April 1, 2018, more than 430 applicants were cleared for waivers after a consular officer determined the applicants satisfied all criteria, and many of those applicants already have received their visas.

The Department of Homeland Security must assess on a continuing basis and update the President annually.

The full Proclamation provides additional details here. The Supreme Court decision is available here.