The Evolution of the US Travel Ban

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By Fardokht Tavakoli

The US travel ban of citizens from mostly Muslim-majority countries has gone through many different incarnations since it was first enacted in 2017. Despite numerous legal challenges, the ban was upheld in June 2018 by the US Supreme Court. The ban has evolved to be slightly less restrictive, and there are some loopholes for citizens of banned countries. Given how much the travel ban has changed, it is important for all those impacted to keep watch as the situation evolves.

Current Travel Ban Restrictions

The Origins of the Travel Ban

The travel ban officially began early in Donald Trump’s presidency, when he released an executive order aiming to protect the nation from foreign terrorist entry into the US. However, it may be more accurate to say that the travel ban sprung its roots during Trump’s campaign, when he promised to ban all Muslims from entering the US. The initial executive order went into effect immediately after it was signed. Even Legal Permanent Residents were barred from traveling back in or out of the US.

The initial ban was specifically targeted at several Muslim-majority countries, including:

  • Iran
  • Iraq
  • Libya
  • Somalia
  • Sudan
  • Syria
  • Yemen

Understandably, the ban resulted in chaos at airports nationwide and led to an emergency order by federal judges on January 28, 2017. As a result, citizens of banned countries were detained in US airports. Protests broke out across the country, and many rushed to the aid of people who were impacted.

The US made some headway on March 6th, 2017 when Trump signed a new version of the executive order, removing Iraq from the list of banned countries This new order also removed Legal Permanent Residents and visa holders from the ban, so that they were once again able to freely travel in and out of the US.

Following the second version of the travel ban, the state of Hawaii sued to block the ban altogether. They cited that the “new executive order is resulting in the establishment of religion in the state of Hawaii [which is] contrary to its state constitution.” A growing number of US district judges made efforts to block the new travel ban, as they believed it was unconstitutional and discriminatory towards Muslims.

The Supreme Court ruled that the ban could in fact be enforced if the citizens of these countries lacked a “credible claim of a bona fide relationship with a person or entity in the US.” The ruling sparked debate on the true definition of a “bona fide relationship.”

As the original ban was set to expire, the President unveiled a third set of restrictions on travel to the US from citizens of certain countries, including:

  • Chad (Removed from the ban because of “improvements in identity-management and information sharing practices”)
  • Iran
  • Libya
  • North Korea
  • Somalia
  • Syria
  • Yemen
  • Venezuela (government officials only)

Most recently, the Supreme Court announced that it would issue its final ruling on the travel ban by late June 2018. By then, over a dozen states had signed on to back a lawsuit against the ban. On April 25th, 2018 the Supreme Court heard oral arguments considering whether the travel ban violates immigration law or even the Constitution. On June 26th, 2018 the Supreme Court upheld the travel ban in a 5-4 ruling. They based their decision off the substantial power of the President to regulate immigration.

The Future of the Travel Ban

The third version of the travel ban is now fully backed by the law. It still primarily impacts Muslim-majority nations, led by Iran in size. Lawmakers are considering enforcing differing levels of restriction based on the country in question, The ban still exempts Green Card holders and everyone who had a valid visa “as of the date the proclamation was issued.”

New Visas and Renewals

Generally, US Citizenship and Immigration Services (USCIS) has stopped issuing new immigrant and nonimmigrant visas for some of the countries on the ban, including renewals. These include Libya, Iran, Somalia, Syria, Yemen, North Korea, and Venezuela (government officials only) indefinitely.

Are There Any Exceptions to the Travel Ban?

The travel ban has some loopholes. The ban does not restrict student visasfrom any countries, except Syria. However, students from these countries must pass more extensive background checks and are not permitted to work after graduation.

Temporary foreign workers from Libya, Somalia, and Yemen may still re-enter the US. However, Yemeni and Libyan nationals are still not permitted to enter the US on B-1 and B-2 visas. Somalis on temporary worker visas will face enhanced screening and vetting.

In the most recent version of the travel ban, the refugee ban was eliminated. Therefore, refugees may still seek asylum regardless of their country of origin.

Waivers from Ban Restrictions

There are waivers available for visa applicants from banned countries. People can qualify for the waiver and enter the US if they meet a few conditions. Applicants will be granted a waiver if:

  • Denying their visa will cause undue hardship
  • They are facing a threat to their security back home
  • Their entry is in the best interest of the US

It is important to note that waivers do not guarantee entry. Analysts believe it is likely that very few travel ban waivers will be granted. One reason is that the national interest requirement may be difficult to measure.

Conclusion

The travel ban may not be overturned anytime soon. However, further changes to the policy are possible. It is important to watch the situation as it unfolds, whether one is directly or indirectly impacted. If you or someone you know may be impacted by the ban, contact an experienced attorney today.

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