UPDATES ON THE TRAVEL BAN
While the legal challenges to President Trump’s September 24, 2017 Presidential Proclamation (“Travel Ban”) continue, on December 2, 2017, the U.S. Supreme Court lifted the injunctions on the Travel Ban’s implementation and allowed it to be fully implemented.
The Travel Ban imposes travel restrictions on those from the following countries:
Chad: Suspends the entry of immigrants and temporary visitors on business or tourist visas (B-1/B-2).
Iran: Suspends the entry of immigrants and all nonimmigrants, except F (student), M (vocational student) and J (exchange visitor) visas, though they will be subject to enhanced screening and vetting requirements.
Libya: Suspends the entry of immigrants and temporary visitors on business or tourist visas (B-1/B-2).
North Korea: Suspends the entry of all immigrants and nonimmigrants.
Somalia: Suspends the entry of immigrants, and requires enhanced screening and vetting of all nonimmigrants.
Syria: Suspends the entry of all immigrants and nonimmigrants.
Venezuela: Suspends the entry of certain government officials and their immediate family members on business or tourist visas (B-1/B-2).
Yemen: Suspends the entry of immigrants and temporary visitors on business or tourist visas (B-1/B-2).
Iraq: While not included in the ban per se, requires enhanced screening of all individuals seeking to enter the United States.
Unless an exemption applies or an individual is eligible for a waiver, the travel ban restrictions apply to individuals of the designated countries who:
- Are outside the U.S. on the applicable effective date;
- Do not have a valid visa on the applicable effective date; and
- Do not qualify for a reinstated visa or other travel document that was revoked under the prior travel ban.
The travel ban does not apply to:
- Lawful permanent residents of the U.S.;
- Individuals admitted to or paroled into the U.S. on or after the effective date of the new travel ban;
- Those with a document other than a visa that allows them to travel to the U.S. if the document is dated on/after the effective date of the new travel ban (such as an advance parole travel document);
- Dual-nationals traveling on a passport from a non-designated country;
- Individuals traveling on diplomatic visas, NATO visas, C-2/U.N. visas, or G-1, G-2, G-3 or G-4 visas;
- Individuals granted asylum;
- Refugees already admitted to the United States; or
- Individuals granted withholding of removal, advance parole, or protection under the Convention Against Torture.
A case-by-case waiver is available, but only for individuals who can show that being denied entry would cause undue hardship to the individual, that their entry would not pose a threat to U.S. national security or public safety and that their entry “would be in the national interest.” There are various factors that may be considered in the waiver process such as the individual having an established significant U.S. business or professional obligation or close familial relationship with a United States citizen, lawful permanent resident, or alien lawfully admitted on a valid non-immigrant visa.
Unlike the administration’s prior travel bans, these new country-specific travel bans are indefinite. While federal agencies must assess the bans every 180 days and recommend whether to continue, terminate, or modify the bans, there is no automatic expiration date for the bans. The DHS Secretary must affirmatively recommend ending them.
Excerpts from AILA Doc. No. 17092633
In light of the U.S. Supreme Court’s ruling, the U.S. Department of State (“DOS”) issued guidance regarding the implementation of the Travel Ban.
Previously Scheduled Visa Appointments
The DOS will not cancel previously scheduled visa application appointments. For nationals of the eight designated countries, a consular officer will make a determination whether an applicant who is otherwise eligible for a visa is exempt from the Travel Ban, or, if not, may be eligible for a waiver under the Travel Ban and therefore issued a visa.
Previously Issued Visas
No visas will be revoked pursuant to the Travel Ban. Individuals subject to the Travel Ban who possess a valid visa or valid travel document generally will be permitted to travel to the U.S., irrespective of when the visa was issued.
For individuals affected by the Travel Ban who are seeking a waiver, there is not a separate application for a waiver. An individual who seeks to travel to the U.S. 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.
For purposes of determining if someone is eligible for the waiver based on a connection to a “close family member,” the term “close family member” only includes spouses, children under the age of 21, and parents of U.S. citizens, of lawful permanent residents, and of aliens lawfully admitted to the U.S. on a valid nonimmigrant visa.
Immigrant Visa Petitions Processing at the National Visa Center
Individuals working on a case with the National Visa Center (NVC) should continue to pay fees, complete the DS-260 immigrant visa application, and submit financial and civil supporting documents to the NVC. The NVC will continue to review cases and schedule visa interview appointments overseas. During the interview, a consular officer will review the case to determine whether the applicant is affected by the Travel Ban and, if so, whether the case qualifies for an exception or may qualify for a waiver.
Excerpts from AILA Doc No 1702670
INTERNATIONAL TRAVEL WITH A PENDING ADVANCE PAROLE
As we advised earlier this year, the USCIS began denying Form I-131 advance parole applications for abandonment in instances where the individual had traveled abroad during the pendency of the application. This is occurred even when the applicant had a separate valid advance parole document or a valid H, K, L, or V visa to return to the United States. While the Form I-131 instructions provide a basis for such denials, the USCIS had a long standing policy of approving advance parole renewal applications for individuals who travel abroad during the pendency of the application with a valid Advance Parole Document or a valid H, K, L, or V visa.
USCIS Service Center Operations Directorate (SCOPS) stated these denials were proper and confirmed that traveling internationally while an application for advance parole is pending will now result in the denial of that application. Subsequent to this SCOPS communication, through liaison activity, it was confirmed with USCIS that this policy would no longer continue and the USCIS would adhere to its prior policy of approvals. This has recently taken a turn as our firm has once again seen denials on this issue.
As a result, we advise that individuals avoid international travel while an advance parole application is pending. Please note that if an advance parole application is denied due to abandonment, it is possible to submit another Form I-131 for USCIS processing once back in the U.S.
ADVANCE PAROLE, SECONDARY INSPECTIONS AND TRUSTED TRAVELER PROGRAMS
Those using Advance Parole Documents for reentry to the U.S. should anticipate being referred to Secondary Inspections by the CBP Officers. The Advance Parole Document requires CBP to take additional steps as part of an individual’s entry to the U.S. and these additional steps cannot be accommodated within the primary inspection lines. As a result, those using Advance Parole Documents should anticipate a delay in clearing U.S. inspection. Please also be advised that an Advance Parole Document cannot be utilized in combination with a Trusted Traveler Program – NEXXUS, SENTRI, or Global Entry.
ESTA – REVIEW VALIDITY BEFORE INTERNATIONAL TRAVEL
Individuals traveling to the U.S. pursuant to the Visa Waiver Program are required to first secure an approval from the Electronic System for Travel Authorization (ETSA). These approvals are valid for multiple entries to the U.S. over a two year period. While most approvals remain intact for the two year validity, it is possible that the CBP may revoke an ESTA approval without notice. As a result, it is always recommended that prior to any international travel that the ESTA approval be reconfirmed which may be done online at https://esta.cbp.dhs.gov/esta/application.html?execution=e1s1.