What Foreign Nationals Need to Know About the Travel Ban

  By: Alexandra LaCombe

President Trumps’s travel ban executive order is now in force against certain nationals of six restricted countries and refugees.  There are, however, broad exemptions for U.S. visa holders, lawful permanent residents, persons with valid advance parole entry documents and those with a bona fide relationship to a person or entity in the U.S.
Most employer-sponsored foreign nationals should be exempt.

The following are answers to some of the frequently asked questions about the travel ban.  The information below is based on the latest guidance from the Departments of State and Homeland Security.

  1. Who is subject to entry restrictions?

Unless exempt or granted a waiver, nationals of Iran, Libya, Somalia, Sudan, Syria and Yemen and refugees from any country are subject to the travel ban and prohibited from entering the United States for the duration of the ban.  Nationality is determined by the passport a traveler presents to enter the United States.

  1. How long will the entry ban be in effect? Could it be expanded to other countries?

Unless exempt or granted a waiver, nationals of the six restricted countries will be barred for 90 days and refugees will be barred for 120 days, starting June 29, 2017. The entry ban could be extended beyond these timeframes.  The Trump Administration is in the process of conducting a worldwide visa security review and could impose travel restrictions on other countries depending on the results of the review.

  1. Who is exempt from the travel ban?

According to the Department of Homeland Security, the travel ban does not apply to foreign nationals who were inside the United States as of June 26, 2017, who had a valid U.S. visa as of 8pm EDT on June 29, 2017 or who had a valid U.S. visa as of 5pm EST on January 27, 2017.  No visas will be revoked solely on the basis of the travel ban.  After their visa expires or they leave the United States, these foreign nationals will not be subject to the ban when they apply for a new visa or reentry, though they must still meet all admissibility requirements as usual.

The following groups of foreign nationals are also exempt:

  • S. lawful permanent residents (green card holders);
  • Dual nationals traveling on a valid passport from a non-restricted country and a valid U.S. visa (unless visa-exempt);
  • Applicants for adjustment of status with a valid advance parole document;
  • Foreign nationals with a valid A, C-2, G or NATO visa;
  • Foreign nationals granted asylum;
  • Refugees already admitted to the United States and those with travel formally scheduled by the State Department;
  • Persons who have been granted withholding of removal, parole or protection under the Convention Against Torture; and
  • Foreign nationals with a bona fide relationship to a person or entity in the United States. This includes individuals whose employers obtained nonimmigrant visa petition approval on their behalf, as well as their dependents, and students who have been admitted to study at a U.S. educational institution.  However, all these individuals should expect close questioning by U.S. consular officials.  Enhanced security screening is likely, and the wait time for a visa could be lengthy.
  1. Will an individual who is planning business travel to the United States but is a national of a restricted country be able to obtain a B-1 visa to the United States?

Individuals in this situation may be exempt from the travel restrictions if they can demonstrate a bona fide relationship with a U.S. entity that can be documented, is in the ordinary course of business and was not established to evade the travel restrictions.  The U.S. government has not specified how it will interpret this requirement with respect to business travelers.  They might qualify for an exemption if they have an invitation letter from a U.S. entity, but that is not yet clear.  When they apply for a B-1 visitor visa, they should expect close questioning about the purpose of their travel and the duration and nature of their relationship with the U.S. entity that has invited them.  They should also expect lengthy security screening.  If they do not qualify for an exemption, they may be eligible for a waiver.  If they already hold a valid U.S. B-1 visa, they should be able to use it to enter the United States for legitimate business travel, but should expect enhanced inspection at the U.S. border.

  1. How can someone qualify for a waiver if they are subject to the travel ban?

The travel ban executive order authorizes the State Department and the Department of Homeland Security to grant waivers on a case-by-case basis in limited circumstances.  To qualify for a waiver, the individual must show that it is in the U.S. national interest to admit him/her, they pose no national security threat and the denial of their entry would cause extreme hardship.  The waiver must be requested during the consular visa interview.

The executive order suggests that a waiver may be appropriate for several classes of foreign nationals, including:

  • Canadian landed immigrants applying for a visa in Canada;
  • Persons with significant business or professional obligations in the United States or with significant contacts;
  • Nonimmigrants previously admitted to the United States for a continuous period of work, study or another long-term activity who are seeking to resume that activity;
  • S. government-sponsored J-1 exchange visitors;
  • Infants, young children (including adoptees), individuals needing urgent medical care and others with special circumstances justifying a waiver;
  • Persons traveling for purposes related to a qualifying international organization or for meetings or business with the U.S. government; and
  • Persons who are or have been employed by the U.S. government and can document “faithful and valuable service.”

Waivers are highly discretionary and subject to strict eligibility criteria.  As such, they may be difficult to obtain.

  1. How does the executive order affect members of U.S. trusted traveler programs?

According to the Department of Homeland Security, U.S. lawful permanent residents who are citizens of a restricted country will not have their membership revoked solely on the basis of the executive order.

Ultimately, it is important to remember that while the travel ban has been and continues to be hotly debated, it only applies to a very specific and limited group of individuals seeking entry into the U.S.

If you need assistance with this, or any other immigration issue, please contact the author, Alexandra LaCombe, at (248) 649-5404 or alacombe@fragomen.com. Alexandra  is a Member of the Legal Affairs Committee of Detroit SHRM and a partner at Fragomen Worldwide.

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. July 2017.