Breif on "Travel Ba" V 3.0
Thursday, September 28, 2017
Dear ICON Members,
Our dear attorney friends have compiled this brief document with the hope of clarifying the situation for Iranians of various status. If you have further question, several points of contact are provided at the end of the document.
What we know about this order
This travel ban is indefinite, making it more far-reaching than past iterations. And unlike earlier versions, it is more specific in its guidance, clearing up a lot of the gray areas that allowed for chaos and legal holdups in the past — likely by design.
The new ban goes into effect, either immediately or on October 18, 2017, under a two-tier system:
(1) for foreign nationals who lack a “bona fide relationship” to a U.S. person or entity (e.g., family, businesses, or schools) as determined by recent case law, the new ban goes into effect today, September 24, 2017; and
(2) for foreign nationals of Iran, who have a credible claim of a “bona fide relationship” with a U.S. person or entity, the ban goes into effect on October 18, 2017. That means that even Iranian nationals with a bona fide relationship to a family member or work relationship in the U.S. will be unable to come to the U.S. beginning October 18 (those with student visas appear to still be permitted).
Whom it bans concerning Iran?
- Iranian citizens, with the exception of those with valid student and visitor visas, are also barred from entry. Only Iranian nationals with F and M student visas or J exchange visitor visas will be allowed entry, and no individuals with immigrant or diversity visas can gain entry.
Whom it does not ban — yet?
- People with permanent US residency — like a green card — are not subject to this ban.
- Anyone on a diplomatic visa will be allowed to enter the United States.
- Those who already have visas will not have them revoked. However, once those visas expire, they will not be able to renew them.
- Notably, this order does not include refugees, for now. Any foreign national who has been granted asylum by the United States and any refugee who has already been admitted to the United States is exempt. However, the administration is expected to release further rules on refugees in the coming days.
- Iranians who have dual citizenship with another country not included in this travel ban will be able to travel to the United States with a passport from a country, not on the ban list.
- Anyone who receives a waiver from Customs and Border Patrol or one issued by the State Department — a case-by-case process — will be exempt:
- (1) denial of entry would cause undue hardship;
- (2) entry would not pose a threat to the national security of the U.S.; and
- (3) entry would be in the national interest.
What would be considered in Case-by-case waivers?
EO states that a waiver may be appropriate in individual circumstances such as the following:
- where a foreign national has previously been admitted to the United States, is outside the United States on the applicable effective date, and seeks to reenter to resume that activity and the denial of reentry would impair that activity;
- the foreign national has previously established significant contacts with the United States but is outside the country on the effective date for a lawful activity;
- the foreign national seeks to enter the country for significant business or professional obligations and the denial of entry would impair those obligations;
- the foreign national seeks to enter the United States to visit or reside with a close family member (e.g. a spouse, child, or parent) who has been lawfully admitted and the denial of entry would cause undue hardship;
- the foreign national is an infant, young child, or adoptee, and individual needing urgent medical care, or someone whose entry is otherwise justified by the special circumstances of the case;
- the foreign national has been employed by or on behalf of the U.S. government or is an eligible department of such an employee, and can document that the employee has provided faithful and valuable service to the Government;
- the foreign national is traveling for purposes related to an international organization designated under the International Organizations Immunities Act (IOIA), traveling for purposes of conducting meetings or business with theU.S. government, or traveling to conduct business on behalf of an international organization not designed under the IOIA;
- the foreign national is a Canadian permanent resident who applies for a visa at a location within Canada;
- the foreign national is traveling as a U.S. government-sponsored exchange visitor; or
- the foreign national is traveling to the United States, at the request of a U.S. government department or agency, for legitimate law enforcement, foreign policy, or national security purposes.
What will happen to the cases filed in the U.S. and being or will be processed by USCIS?
This is a travel ban, mostly, and cases that have been or being filed inside the united states, and is being or will be processed by the USCIS, whether it is a change of status or adjustment of status, are not impacted.
What will happen to the supreme court case over the second ban?
The supreme court was due to hear arguments on Trump’s second ban on 10 October, which is eight days before the new ban is due to go into effect. But on Monday it canceled that hearing and asked for updated briefings from the government and the two groups of challenges.
The claim that Trump’s previous two orders have been motivated by “religious animus”, in this case, discrimination against Muslims, has been central to the challenges to the ban throughout. But the administration will likely argue to the supreme court that the inclusion of Venezuela and North Korea, neither of which are Muslim majority nations, alleviates these concerns.
Rights groups involved in the challenge have already indicated they will argue the inclusion of these two countries is a smokescreen for discrimination, as the restrictions on both countries are limited.
This issue continues to evolve and this newest travel ban will certainly face legal challenges. We will continue to provide updates following breaking developments. Please be noted that this information is not in form of a legal consult, if you have any doubts about your status please contact a lawyer. In case of urgent need to speak with a lawyer please contact: