September 25, 2017

As you are likely aware, President Trump issued a Presidential Proclamation yesterday entitled, "Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats." We have included a detailed summary of the Proclamation below. For reference, following are the key details:
  • Implements restrictions on entry into the U.S. for individuals from Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen, and Somalia, with some exceptions as explained in the more detailed summary below.
  • Consulates will no longer issue immigrant visas (i.e. process applications to enter the U.S. as a permanent resident) to foreign nationals from these countries, with the exception of Venezuela.
  • Foreign nationals from North Korea and Syria will not be allowed to enter in any nonimmigrant visa status.
  • Foreign nationals from Iran will only be eligible to obtain nonimmigrant visas to enter as students (F or M visas) or exchange visitors (J visas), and those travelers will be subject to enhanced screening and vetting requirements.
  • Foreign nationals from Chad, Libya, and Yemen, and select government officials from Venezuela, will not be eligible to obtain B visas to enter as tourists or for business.
  • Foreign nationals from Somalia applying to enter as nonimmigrants will be subject to additional scrutiny. Foreign nationals from Iraq will continue to face additional scrutiny, but are not subject to any entry bans.
  • Effective immediately for individuals previously covered by the March 6 "travel ban"; effective October 18, 2017 for all other impacted individuals.
  • Valid indefinitely.
  • At this time, it does not appear that petitions and applications filed with USCIS (i.e. to change, extend, or adjust status in the U.S.) will be directly impacted.
This Proclamation follows up on the March 6 Executive Order which, among many other things, ordered the Secretary of Homeland Security to work with the Secretary of State and the Director of National Intelligence to conduct a worldwide review of available information from every country to be used in determining whether a foreign national from that country who is applying for a U.S. immigration benefit is a security or public-safety threat. As part of the review, the Secretary of Homeland Security established global requirements and criteria for information sharing in support of immigration screening and vetting. The criteria include the availability of identity-management information (to determine that an applicant is who they claim to be); national security and public-safety information; and national security and public-safety risk assessments (including whether the country is a known or suspected terrorist safe haven). The Secretary of State then engaged with the countries reviewed to address deficiencies and achieve improvements.
The Secretaries of Homeland Security and State, along with the Attorney General, have determined that a small number of countries, out of the nearly 200 evaluated, remain deficient with respect to their identity-management and information-sharing capabilities, protocols, and practices. Until these deficiencies are satisfactorily addressed, certain conditional restrictions and limitations are being imposed on entry into the United States by nationals of the countries. The restrictions take into account a number of factors, including the country's likelihood for improvement and future cooperation, and their willingness to cooperate in combating terrorism.

Effective Date: The restrictions and limitations listed below took immediate effect for those foreign nationals who were subject to entry restrictions under the March Executive Order and lack a credible claim of a bona fide relationship with a person or entity in the United States. They take effect on October 18, 2017 for all other individuals subject to the Proclamation, including nationals of Iran, Libya, Syria, Yemen, and Somalia who have a credible claim of a bona fide relationship with a person or entity in the U.S., with the addition of all individuals from Chad, North Korea, and Venezuela.
Following is a list of the affected countries and categories of applicants who will not be allowed entry into the United States until further notice, beginning either immediately or on October 18, 2017:
  • Chad:
  • Immigrant visas
  • Nonimmigrants seeking a business (B-1), tourist (B-2) or B-1/B-2 visa
  • Iran
  • Immigrant visas
  • Nonimmigrant visas, except those seeking to enter under valid student (F and M) or exchange visitor (J) visas; F, M, and J visa applicants will be subject to enhanced screening and vetting requirements
  • Libya
  • Immigrant visas
  • Nonimmigrants seeking a business (B-1), tourist (B-2) or B-1/B-2 visa
  • North Korea
  • Immigrant visas
  • Nonimmigrant visas
  • NOTE: In a separate Executive Order issued last week, the President suspended entry of all immigrants and nonimmigrants from North Korea effective September 21, 2017, with the exception of U.S. citizens, permanent residents, and foreign nationals lawfully admitted to the U.S. or holding a valid U.S. visa.
  • Syria
  • Immigrant visas
  • Nonimmigrant visas
  • Venezuela
  • Certain government officials and their immediate family members seeking to enter as nonimmigrants on a business (B-1), tourist (B-2) or B-1/B-2 visa. This includes officials working for: the Ministry of the Popular Power for Interior, Justice and Peace; the Administrative Service of Identification, Migration and Immigration; the Scientific, Penal and Criminal Investigation Service Corps; the Bolivarian National Intelligence Service; and the Ministry of the Popular Power for Foreign Relations.
  • All other visa holders will be subject to additional security measures.
  • Yemen
  • Immigrant visas
  • Nonimmigrants seeking a business (B-1), tourist (B-2) or B-1/B-2 visa
  • Somalia
  • Immigrant visas
  • Nonimmigrant visa applicants will be subject to additional scrutiny
  • Iraq
  • No entry restrictions, but nationals seeking to enter the U.S. will continue to face additional scrutiny
The suspension / limitations on entry will only apply to foreign nationals from these countries who:
  • Are outside the United States on the effective date (as defined above);
  • Do not have a valid visa on the effective date - no immigrant or nonimmigrant visa issued before that date shall be revoked pursuant to this Proclamation; and
  • Do not qualify for a visa or other valid travel document based on prior revocation of a visa due solely to Executive Order 13769 (the initial, aborted travel ban from January 2017).
Exemptions: The following individuals are exempt from the suspension of entry:
  • Any lawful permanent resident of the United States;
  • Any foreign national who is admitted to or paroled into the U.S. on or after the effective date;
  • Any foreign national who has a document other than a visa (e.g. Advance Parole) that permits him or her to travel to the U.S. to seek entry or admission which is valid on the effective date, or issued on any date thereafter;
  • Any dual national who also holds a passport issued by a non-designated country;
  • Any foreign national traveling on a diplomatic or diplomatic-type visa (NATO, C-2 or G visa); or
  • Any foreign national who has been granted asylum by the United States; any refugee who has already been admitted to the United States; or any individual who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture. Furthermore, foreign nationals will still be provided the opportunity to enter the U.S. on the basis of a credible claim of fear or persecution or torture, to seek asylum, refugee status, withholding of removal, or protection under the Convention Against Torture.
Waivers: Consular Officers or designated officials from U.S. Customs & Border Protection (CBP) may, in their discretion, grant waivers on a case-by-case basis. Waivers may be granted only if a foreign national demonstrates that: denying entry would cause undue hardship; entry would not pose a threat to the national security or public safety of the U.S.; and entry would be in the national interest.
Waivers issued by Consular Officers as part of the visa adjudication process will be effective for the issuance of the visa and any subsequent entry. Examples of waiver circumstances include:
  • Foreign nationals who were previously admitted to the U.S. for a continuous period of work, study, or other long-term activity, are outside the U.S. on the effective date, and seek to reenter the U.S. to resume that activity;
  • Foreign nationals who previously established significant contacts with the U.S. for work, study, or other lawful activity, but are outside the U.S. on the effective date;
  • Foreign nationals seeking to enter the U.S. for significant business or professional obligations;
  • Foreign nationals seeking to enter the U.S. to visit or reside with a close family member (e.g. spouse, child, or parent) who is a U.S. citizen, lawful permanent resident, or who was lawfully admitted on a valid nonimmigrant visa, and the denial of entry would cause undue hardship to the foreign national;
  • Foreign national infants, young children or adoptees, individuals needing urgent medical care, or whose entry is otherwise justified by the special circumstances of the case;
  • Foreign nationals who have been employed by or on behalf of the U.S. Government, including eligible dependents, and can document provision of faithful and valuable service to the U.S. Government;
  • Foreign nationals traveling for purposes related to an international organization under the IOIA, traveling to conduct meetings or business with the U.S. Government, or traveling to conduct business on behalf of a non-IOIA international organization;
  • Foreign nationals who are Canadian permanent residents and apply for a visa at a location within Canada;
  • Foreign nationals traveling as a U.S. Government-sponsored exchange visitor; or
  • Foreign nationals traveling to the U.S. at the request of a U.S. Government agency or department for legitimate law enforcement, foreign policy, or national security purposes.
Length of Restrictions / Limitations on Entry: Should the Secretary of Homeland Security, in consultation with other agency heads, determine at any time that a country now meets the required security and information-sharing standards, a recommendation may be made to the President to remove or modify the restrictions and limitations. Similarly, recommendations may be made at any time to add additional restrictions or limitations on these or other countries due to a change in circumstances regarding security or information-sharing practices with that country.
In addition, the Secretary of Homeland Security, in consultation with various other agency heads, will submit reports to the President every 180 days with recommendations regarding whether to continue or amend these restrictions and limitations, and whether to add additional suspensions or limitations for nationals of other countries. The Secretary of State will continue to engage with the affected countries to try to alleviate the deficiencies in their security and information-sharing practices.
The Proclamation further requires the Secretary of Homeland Security to provide periodic reports to the President describing: the steps taken to improve vetting of nationals of all countries, including through improved collection of biometric and biographic data; the scope and magnitude of fraud, errors, false information, and unverifiable claims, based on a validation study, made in applications for immigration benefits; and evaluating the procedures related to screening and vetting established by the Department of State's Bureau of Consular Affairs in order to enhance the safety and security of the U.S.

Applicability to Individuals Already in the U.S.: The Proclamation is specifically aimed at individuals from these countries who are entering the U.S. At this time, it does not appear that the restrictions will have a direct impact on USCIS adjudications of applications and petitions (e.g. to change, extend, or adjust status in the U.S.).

Extreme Vetting Reminder: As a reminder, any visa applicant, regardless of country of origin, may still be subject to extreme vetting, as detailed in our summer travel advisory
Please reach out to the attorney with whom you work if you have questions about individuals who may be affected by these new restrictions.
Please note that this News Flash is provided for informational purposes only.  It does not constitute legal advice and is not a substitute for consulting with an attorney.

The Attorneys at RSST Law Group