U.S. Supreme Court Upholds Travel Ban: Restrictions and What this Means for Travelers

Posted by: Fabiana Hershfield, Supply Chain Manager and Christine Wrigley, Manager, Supply Chain Management

The Supreme Court recently upheld a presidential proclamation that imposes indefinite travel restrictions on certain nationals of Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen, reversing a federal district court’s grant of a preliminary injunction against the restrictions. The Supreme Court had previously permitted the Trump Administration to temporarily enforce the ban pending ongoing litigation.

The Court held that the travel restrictions are within the President’s broad powers to suspend the entry of foreign nationals where such entry would be detrimental to the national interest. The majority found that the travel restrictions are rationally related to U.S. national security objectives and thus the plaintiffs are unlikely to succeed in their claim that the presidential proclamation violates the First Amendment’s prohibition on the government favoring one religion over another. The Court also held that laws prohibiting nationality-based discrimination do not limit the President’s power to determine who may enter the United States. The case is Trump v. Hawaii.

Travel Restrictions

 Nationals of the restricted countries will remain subject to the following U.S. travel limitations, unless otherwise exempt or granted a waiver:

• Iran: No nonimmigrant visas except F/M student visas and J exchange visitor visas; no immigrant or diversity lottery visas.
• Libya: No B-1, B-2, or B-1/B-2 visitor visas; no immigrant or diversity lottery visas.
• North Korea: No nonimmigrant, immigrant, or diversity lottery visas.
• Somalia: Nonimmigrant visa applicants subject to heightened scrutiny; no immigrant or diversity visas.
• Syria: No nonimmigrant, immigrant, or diversity lottery visas.
• Venezuela: No B-1, B-2, or B-1/B-2 visas for officials of designated Venezuelan government agencies. Other visa holders are subject to verification of traveler information. No restrictions on immigrant or diversity lottery visas.
• Yemen: No B-1, B-2, or B-1/B-2 visitor visas; no immigrant or diversity lottery visas.

The Department of Homeland Security previously lifted the proclamation's restrictions on nationals of Chad.

Exemptions and Waivers

Several classes of foreign national are exempt from the restrictions, including U.S. lawful permanent residents, dual nationals traveling on a passport from a non-restricted country, foreign nationals who hold a valid U.S. visa or advance parole and those who were physically in the United States on the applicable original effective date of the travel restrictions.

Those who are not exempt may request a waiver when applying for a visa. To be eligible for a waiver, a foreign national must demonstrate that he or she would suffer undue hardship if denied entry, and that his or her entry would not pose a threat to U.S. national security or public safety and would be in the U.S. national interest. Waivers are highly discretionary and may be difficult to obtain.

Looking Ahead

The current travel restrictions will remain in place until the Administration lifts them or removes particular countries from the list. The Administration could add new countries and broaden restrictions on foreign nationals already subject to the proclamation.

With the lifting of the preliminary injunction against the travel restrictions, the State of Hawaii’s challenge to the proclamation will now return to federal district court for further proceedings, consistent with the Supreme Court’s ruling.

Fragomen is closely following this subject and will issue further client alerts as developments occur.

© 2018 Fragomen, Del Rey, Bernsen & Loewy, LLP, Fragomen Global LLP and affiliates. All Rights Reserved. This alert is for informational purposes only and does not constitute legal advice or give rise to an attorney-client relationship between you and Fragomen Worldwide. If you have any questions, please do not hesitate to contact the global immigration professional with whom you work at Fragomen Worldwide.

Cartus Recommendations for Relocation Managers

As you review your international assignment planning in light of this news, Cartus recommends that you:

• Set expectations with your host business unit regarding the travel ban countries and U.S. visa limitations for these nationals.
• Ensure that foreign nationals from travel ban countries with approved U.S. visas are prepared for the potential of additional vetting upon arrival in the U.S.  
• Have employees from these countries discuss any immigration concern directly with their assigned/or preferred immigration provider. 

Should you require any further information about this or any other aspect of visa/immigration planning, please seek specialist advice from your immigration provider.