Jun 29 2017

What Foreign Nationals Need to Know About the Travel Ban

United States

(Updated June 30, 2017)

As of 8pm EDT Thursday, President Trump’s travel ban executive order is in force against certain nationals of six restricted countries and against refugees from any country.

The ban was put in place following a Supreme Court decision Monday to allow the Trump Administration to partially enforce the ban, but to exempt foreign nationals who have a credible claim of a bona fide relationship to an entity or person in the United States. Most employer-sponsored foreign nationals should be exempt.

The following are Fragomen’s answers to 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 will be 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.

2. 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. 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.

3. 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:

U.S. lawful permanent residents (green card holders); if you are applying for an immigrant visa to come to the United States as a permanent resident, see Question 6.
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 (see Questions 4-8).

4. I am a national of a restricted country. I have an approved USCIS nonimmigrant petition sponsored by a company in the United States. Will I be subject to the ban? What about my dependents?

If your employer has obtained an H-1B, L-1, O-1 or other nonimmigrant visa petition approval on your behalf or is sponsoring your blanket L-1 visa application, you should qualify for the exemption and be able to obtain a U.S. visa based on your bona fide relationship with your employing entity, provided you are otherwise eligible for the visa and the relationship was not established for purposes of evading the travel ban. If you qualify, your spouse and children under the age of 21 should be able to obtain dependent visas to accompany or join you.

Though you may qualify for an exemption from the ban, you should expect close questioning by U.S. consular officials. Enhanced security screening is likely, and the wait time for your visa could be lengthy.

5. Are foreign students subject to the travel restrictions?

If you are a national of a restricted country and have been admitted to study at a U.S. school, you should qualify for an exemption and be able to obtain an F-1 or J-1 visa based on your bona fide relationship with the school, provided you are otherwise eligible. Your spouse and children under the age of 21 should be able to obtain dependent visas to accompany or join you.

Even if you qualify for an exemption from the ban, you should expect close questioning by U.S. consular officials. Enhanced security screening is likely, and the wait time for your visa could be lengthy.

6. I am a national of a restricted country and am applying for an immigrant visa to come to the United States as a permanent resident. Will I be subject to the travel ban?

If you have an approved family-based or employment-based immigrant visa petition and you are otherwise eligible, you should be exempt from the ban and be able to obtain a U.S. immigrant visa based on your ties to your sponsor, provided your relationship is bona fide, can be documented and was not established to evade the travel ban. If you are a self-sponsored foreign national – such as a person who has self-petitioned for permanent residence as a person of extraordinary ability (EB-1) without a job offer from a U.S. entity – you are subject to the travel restrictions unless you demonstrate a bona fide relationship with a U.S. entity or qualify for a waiver.

7. I am planning business travel to the United States and am a national of a restricted country. Will I be able to obtain a B-1 visa to the United States?

You may be exempt from the travel restrictions if you 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. You might qualify for an exemption if you have an invitation letter from a U.S. entity, but that is not yet clear. When you apply for a B-1 visitor visa, you should expect close questioning about the purpose of your travel and the duration and nature of your relationship with the U.S. entity that has invited you. You should also expect lengthy security screening. If you do not qualify for an exemption, you may be eligible for a waiver; see Question 9.

If you already hold a valid U.S. B-1 visa, you 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.

8. I want to travel to the United States to visit or live with a family member and am a national of a restricted country. Am I subject to travel restrictions?

If you are a spouse or minor child of an employer-sponsored foreign national, see Questions 4 and 6.

Otherwise, if you have a close family relationship with a person in the United States, you may be exempt from the travel ban. Close family is defined as a parent (including a parent-in-law), a spouse, a child, an adult son or daughter, a son-in-law or daughter-in-law, or a sibling (whole or half), including step relationships. Fiancés are also considered close family. They were initially deemed not to be eligible for an exemption, but the Administration reversed its policy moments before the ban took effect on Thursday though it did not formally announce the change.

For purposes of the travel ban, at this time, close family does not include grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-law, sisters-in-law, or any other extended family members, even though longstanding State Department policy has authorized U.S. consulates to grant visitor visas to extended family members in ordinary circumstances. A federal lawsuit has already been filed to seek clarification of the definition of "close family."

If you do not have a qualifying relationship for purposes of the travel ban, you may be eligible for a waiver, discussed below.

9. I am subject to the travel ban. How can I qualify for a waiver?

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

10. 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.

This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.