June 4 marked a very active day for the administration in immigration related proclamations. The horrific act of anti-semitic violence by an Egyptian national B visa visitor overstay in Boulder, Colorado has served as a catalyst for both a travel ban and restrictions to cut off access to Harvard University by F-1 and M-1 students. The June 4 Harvard Proclamation is entitled “Enhancing National Security by Addressing Risks at Harvard University.” This article will focus on an overview of the new travel ban.
TRAVEL BAN REDUX – WHEN? WHO?
The White House also issued a Proclamation entitled “Restricting the Entry of Foreign Nationals to Protect the United States from Foreign Terrorists and other National Security and Public Safety Threats,” which imposes a Travel ban as of June 9 at 12:01 am eastern daylight time (Ban), along with a Ban Fact Sheet on June 4. The Proclamation fully limits the entry of nationals from 12 countries determined to post a “very high” risk to the U.S. These countries are: Afghanistan, Burma, Chad, Republic of the Congo, Equatorial Guinea, Eritrea, Haiti, Iran, Libya, Somalia, Sudan, and Yemen. Nationals of 7 other countries are partially restricted from entry to the U.S. These countries are: Burundi, Cuba, Laos, Sierra Leone, Togo, Turkmenistan, and Venezuela.
Are there exceptions? Yes, the Proclamation has exceptions for legal permanent residents, existing visa holders, certain visa categories, and individuals whose entry to the U.S. serves the national interest.
Full Suspension of Entry to the United States starting June 9 at 12:01 a.m. Eastern Daylight Time.
APPLIES TO IMMIGRANTS AND ALL NONIMMIGRANTS, EXCEPT THOSE SUBJECT TO A CATEGORICAL EXCEPTION OR WAIVER ON A CASE- BY-CASE BASIS.
Partial Suspension of Entry to the United States starting June 9 at 12:01 a.m. Eastern Daylight Time.
APPLIES TO IMMIGRANTS AND B-1, B-2, B-1/B-2, F, M, and J NONIMMIGRANTS
NOTE: VALIDITY OF ALL OTHER NONIMMIGRANT VISA SUBJECT TO VALIDITY REDUCTIONS.
WHO IS SUBJECT?
- Those who are OUTSIDE OF THE U.S. as OF June 9 at 12:01 a.m. Eastern Daylight Time.
- Those who do not have a valid visa as of June 9 at 12:01 a.m. Eastern Daylight Time.
WHO IS EXEMPT?
- U.S. Lawful Permanent Residents. Note that a holder of an immigrant visa is not a lawful permanent resident until admitted to the U.S. using their immigrant visa.
- Dual Nationals traveling to the U.S. on the passport of a country not subject to the Proclamation.
- Nonimmigrants traveling to the U.S. with a valid nonimmigrant visa in these categories: A- 1, A-2, C-2, C-3, G-1, G-2, G-3, G-4, NATO-1, NATO‑2, NATO-3, NATO-4, NATO-5, or NATO-6.
- Athletes or members of an athletic team, including coaches, persons performing a necessary support role, and “immediate relatives” (e.g. spouse, parent, minor children?) traveling for the World Cup, Olympics, or other major sporting event as determined by the Secretary of State.
- Immediate family immigrant visa holders (i.e., IR-1/CR-1, IR-2/CR-2, IR-5) with clear and convincing evidence of identity and family relationship (e.g., DNA).
- Adopted children (i.e., IR-3, IR-4, IH-3, IH-4).
- Afghan Special Immigrant Visas.
- Special Immigrant Visas for U.S. Government employees.
- Immigrant visas for ethnic and religious minorities facing persecution in Iran.
WHAT EXCEPTIONS MAY BE APPLIED?
- Foreign nationals whose travel to the U.S. is found by the Attorney General to advance a critical U.S. national interest involving the Department of Justice (DOJ), including being present in the U.S. to participate as a witness in criminal proceedings. The Attorney General, or their designee, shall make these determinations in coordination with the Secretaries of DHS and State.
- Foreign nationals whose travel to the U.S. is determined on a case-by-case basis by the Secretary of State to serve the national interest of the U.S. The Secretary of State shall make these determinations in coordination with the Secretary of DHS or their designee.
MAY IMMIGRANT OR NONIMMIGRANT VISAS ISSUED BEFORE THE JUNE 9 IMPLEMENTATION DATE BE REVOKED PURSUENT TO THIS PROCLAMATION? NO
DOES THE PROCLAMATION APPLY TO THOSE GRANTED ASYLUM, TO THOSE ADMITTED TO THE U.S. AS REFUGEES, OR TO THOSE GRANTED WITHOLDING OR REMOVAL OR PROTECTION UNDER THE CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OF PUNISHMENT (CAT)? NO
HOW LONG WILL THE PROCLAMATION APPLY?
Within 90 days of June 4 (The date of the Proclamation), which falls on September 2, and every 180 days thereafter, the Secretary of State must consult with the Attorney General, the DHS Secretary, and the Director of National Intelligence in order to submit a report to the President regarding whether any of the Proclamation’s suspensions or limitations should be continued, terminated, modified, or supplemented. Of course, we will see how suspected future litigation may fare after the decision of the U.S. Supreme Court in Trump v. Hawaii from 2018 as to the use of section 212(f) of the INA to impose entry restrictions to the U.S. This case resulted in a 5-4 decision supporting President Trump’s prior Muslim travel ban and did not find a violation of the Establishment Clause of the First Amendment.
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