Indefinite Entry Bar Under Executive Order

June 26, 2018

 

Travel Ban 3.0 is currently in effect on seven countries:

  1. Iran
  2. Libya
  3. North Korea
  4. Syria
  5. Venezuela
  6. Yemen
  7. Somalia

An eighth country, Chad, was removed from this list effective April 13, 2018 (see Presidential Proclamation of April 10, 2018). The Travel Ban 3.0 restrictions on the remaining seven countries are country-specific, and tailored to the situation of each individual country. This NAFSA advisory describes these restrictions as well as a number of important exemptions and exceptions to the ban for certain individuals from these countries.

Brief background

President Trump ordered Travel Ban 3.0 on September 24, 2017, in Proclamation 9645. Several parties immediately sued to block the ban, but the litigation ultimately did not stop its implementation. On June 26, 2018, the U.S. Supreme Court upheld the ban, but it had already been in effect and enforced since December 4, 2017, when the Supreme Court stayed preliminary injunctions that had partially blocked it. Consult NAFSA's litigation updates page for additional background on the Travel Ban 3.0 litigation.

Read the Proclamation  

Navigate this advisory

Countries and Conditions

Nationals of the following countries will generally be ineligible for a visa or for admission to the United States, unless otherwise exempt, excepted, or granted a waiver.

Make sure to read Exemptions and Exceptions and Waivers below for exceptions to these general rules.

Chad

A Presidential Proclamation of April 10, 2018 removed Chad from the list of countries subject to Travel Ban 3.0, after a March 20, 2018 report from the Secretary of Homeland Security, in consultation with the Secretary of the Department of State, concluded "that Chad has made marked improvements in its identity-management and information-sharing practices." Chad is no longer subject to Travel Ban 3.0 effective April 13, 2018.

Iran

  • Entry as an immigrant is suspended
  • Entry of Iranian nationals "under valid student (F and M) and exchange visitor (J) visas is not suspended, although such individuals should be subject to enhanced screening and vetting requirements."
  • Entry under other types of nonimmigrant visas is suspended

Read the full entry on Iran in the Proclamation

Libya

  • Entry as an immigrant is suspended
  • Entry is suspended for nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas.
  • Entry under other types of nonimmigrant visas is not suspended

Read the full entry on Libya in the Proclamation

North Korea

  • Entry as an immigrant is suspended
  • Entry is suspended for all nonimmigrant visa categories

Read the full entry on North Korea in the Proclamation

Syria

  • Entry as an immigrant is suspended
  • Entry is suspended for all nonimmigrant visa categories

Read the full entry on Syria in the Proclamation

Venezuela

  • Entry is suspended for Venezuelan nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas, but only for officials of government agencies of Venezuela involved in screening and vetting procedures - including 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 - and their immediate family members.
  • Nationals of Venezuela not subject to the above suspension should nevertheless "be subject to appropriate additional measures to ensure traveler information remains current."

Read the full entry on Venezuela in the Proclamation

Yemen

  • Entry as an immigrant is suspended
  • Entry is suspended for nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas
  • Entry under other types of nonimmigrant visas is not suspended

Read the full entry on Yemen in the Proclamation

Somalia

  • Entry as an immigrant is suspended
  • "Visa adjudications for nationals of Somalia and decisions regarding their entry as nonimmigrants should be subject to additional scrutiny to determine if applicants are connected to terrorist organizations or otherwise pose a threat to the national security or public safety of the United States."

Read the full entry on Somalia in the Proclamation

Iraq is not listed as one of the countries, but the Proclamation states that DHS recommended "that nationals of Iraq who seek to enter the United States be subject to additional scrutiny to determine if they pose risks to the national security or public safety of the United States."

Also make sure to read Exemptions and Exceptions and Waivers below for exceptions to the general rules described above.

Effective Dates

Section 7 of the Proclamation contained two effective dates:

September 24, 2017 at 3:30 p.m. EDT

The September 24, 2017 effective date applies to nationals of Iran, Libya, Syria, Yemen, and Somalia who were subject to the prior 90-day entry ban of Executive Order 13780, because they "lack credible claim of a bona fide relationship with a person or entity in the United States."

October 18, 2017 at 12:01 a.m. EDT

The October 18, 2017 effective date applies: 1) to all nationals of Chad (until April 13, 2018, when Chad was removed from the list of 8 countries), North Korea, and Venezuela, and 2) to 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 United States."

For purposes of determining which effective date to use, a "bona fide relationship" must be with one of the following persons or entities in the United States:

  • Persons: Parent (including parent-in-law), Spouse, Fiance, Child, Adult son or daughter, Son-in-law, Daughter-in-law, Sibling, Grandparent, Grandchild, Brother-in-law, Sister-in-law, Aunt, Uncle, Niece, Nephew or, Cousin (first cousins only), including half or step status relationships.
  • Entities: A bona fide relationship with a "U.S. entity" that is formal, documented, and formed in the ordinary course rather than for the purpose of evading suspension of entry under presidential proclamation.

Remember, though, under Section 7 whether or not a national from Iran, Libya, Syria, Yemen, or Somalia has a bona fide relationship with a person or entity in the United States is relevant only for purposes of determining the effective date triggers that are mentioned in the other parts of the Proclamation. Such relationships do not constitute an independent exception to the ban.

For example, Section 3(a) places beyond the scope of the proclamation individuals who were inside the United States or had a valid U.S. visa on the applicable effective date of the Proclamation. To properly apply the Section 3 scope provision, you need to identify the applicable effective date, which is the purpose of Section 7.

Although at once time the preliminary injunctions arising out of the Hawaii and Maryland lawsuits had inserted a judicial exception based on a "credible relationship," those preliminary injunctions are no longer in effect, and so a "credible relationship" is now only relevant for determining which effective date applies to someone (e.g., by which date you have to have either been in the United States or had a visa, for purposes of whether they are in or outside the scope of the travel ban.

The conditions imposed by the Proclamation will last until the country begins providing such information "or until the Secretary of Homeland Security certifies that the country has an adequate plan to do so, or has adequately shared information through other means."

Exemptions and Exceptions

General Exemption

Under Proclamation 9645 Section 3(a), the entry ban generally applies only to nationals of subject countries who were outside the United States and without a valid U.S. visa on the applicable effective date of the Proclamation.

And so, individuals who meet either of the following conditions are exempt from this entry ban:

  • Were inside the United States as of the applicable effective date; or
  • Had a valid U.S. visa on the applicable effective date

General Exceptions

Under Proclamation Section 3(b), the entry ban also does not apply to:

  1. Any lawful permanent resident of the United States;
  2. Any foreign national who is admitted to or paroled into the United States on or after the applicable effective date of the Proclamation;
  3. Any foreign national who has a document other than a visa, valid on the applicable effective date of the Proclamation, or issued on any date thereafter, that permits him or her to travel to the United States and seek entry or admission, such as advance parole;
  4. Any dual national of a country designated under the order when traveling on a passport issued by a non-designated country;
  5. Any applicant traveling on an A-1, A-2, NATO-1 through NATO-6 visa, C-2 for travel to the United Nations, G-1, G-2, G-3, or G-4 visa, or a diplomatic-type visa of any classification;
  6. Any foreign national who has been granted asylum;
  7. Any refugee who has already been admitted to the United States;
  8. Any individual who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture

An individual who fits into any one of these categories should not be subject to the 2(e) travel ban.

Waivers

Section 3(c) of the Proclamation grants authority to consular and immigration officials to grant waivers on a case-by-case basis to an individual who would otherwise be subject to the Proclamation's entry ban, but who "demonstrates to the consular officer's or CBP official's satisfaction that:

(A) denying entry during the suspension period would cause the foreign national undue hardship;

(B) entry would not pose a threat to the national security or public safety of the United States;

(C) entry would be in the national interest."

There is no separate "travel ban waiver application." Instead, an individual who believes he or she is eligible for a waiver would apply for a visa as normal, but include information that supports his or her eligibility for a waiver. Because the standard for establishing eligibility for a waiver is so broad, section 3(c) also offers ten examples of circumstances where a case-by-case waiver could be appropriate. These examples in the Proclamation are not an exclusive list, nor are they a "guarantee." Other situations where an applicant can establish that his or her entry meets the standard for a waiver might also be considered by a consular or immigration official.

(A) the foreign national has previously been admitted to the United States for a continuous period of work, study, or other long-term activity, is outside the United States on the applicable effective date under section 7 of this proclamation, seeks to reenter the United States to resume that activity, and the denial of reentry would impair that activity;

(B) the foreign national has previously established significant contacts with the United States but is outside the United States on the applicable effective date under section 7 of this proclamation for work, study, or other lawful activity;

(C) the foreign national seeks to enter the United States for significant business or professional obligations and the denial of entry would impair those obligations;

(D) the foreign national seeks to enter the United States to visit or reside with a close family member (e.g., a spouse, child, or parent) who is a United States citizen, lawful permanent resident, or alien lawfully admitted on a valid nonimmigrant visa, and the denial of entry would cause the foreign national undue hardship;

(E) the foreign national is an infant, a young child or adoptee, an individual needing urgent medical care, or someone whose entry is otherwise justified by the special circumstances of the case;

(F) the foreign national has been employed by, or on behalf of, the United States Government (or is an eligible dependent of such an employee) and the foreign national can document that he or she has provided faithful and valuable service to the United States Government;

(G) the foreign national is traveling for purposes related to an international organization designated under the International Organizations Immunities Act (IOIA), 22 U.S.C. 288 et seq., traveling for purposes of conducting meetings or business with the United States Government, or traveling to conduct business on behalf of an international organization not designated under the IOIA;

(H) the foreign national is a Canadian permanent resident who applies for a visa at a location within Canada;

(I) the foreign national is traveling as a United States Government-sponsored exchange visitor;

(J) the foreign national is traveling to the United States, at the request of a United States Government department or agency, for legitimate law enforcement, foreign policy, or national security purposes.

Background on the Section 2(e) Entry Ban

Sections 2(a), (b), (d) and (e) of Executive Order 13780 established the framework for an indefinite entry bar that could apply to any country that is unwilling or unable to provide the United States with the information that it decides is needed "in order to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat."

The administration cites INA 212(f) as the underlying statutory authority for the ban. That paragraph of the Immigration and Nationality Act provides that, "(f) Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate."

Here is a summary of the components and timeline that resulted in the Section 2(e) Indefinite Entry Ban under Proclamation 9645.

Worldwide review of information needed from countries

Section 2(a) of Executive Order 13780 required the Secretary of the Department of Homeland Security, in consultation with the Secretary of State and the National Intelligence Director, to:

"... conduct a worldwide review to identify whether, and if so what, additional information will be needed from each foreign country to adjudicate an application by a national of that country for a visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual is not a security or public-safety threat. The Secretary of Homeland Security may conclude that certain information is needed from particular countries even if it is not needed from every country."

DOS's July 12, 2017 cable provided the following general description of these standards:

Standards for identity-related information-sharing by foreign governments whose nationals seek to travel to the United States

  • Countries should issue, or have active plans to issue, electronic passports that conform to ICAO specifications and include a facial biometric image to enable verification of travel documents;
  • Countries should regularly report lost and stolen passports, whether issued or blank, to the INTERPOL Stolen and Lost Travel Document Database to maintain the integrity of travel documents; and
  • Countries should make available any other identity information at the request of the U.S. including, as appropriate, additional biographic and biometric data and relevant immigration status.

Standards for measuring information-sharing related to terrorism or public safety threats by foreign governments whose nationals seek to travel to the United States

  • Countries should make available information, including biographic and biometric data, on individuals it knows or has reasonable grounds to believe are terrorists, including foreign terrorist fighters, through appropriate bilateral or multilateral channels;
  • Countries should make available through appropriate bilateral or multilateral channels criminal history record information, including biographic and biometric data, on its nationals, as well as permanent and temporary residents, who are seeking U.S. visas or border or immigration benefits;
  • Countries should provide exemplars of all passports and national identity documents they issue to the U.S. Department of Homeland Security's Immigration and Customs Enforcement Forensic Laboratory, including applicable date ranges and numbering sequences, as required, in order to improve U.S. Government fraud detection capabilities;
  • Countries should not impede the transfer to the U.S. Government of information about passengers and crew traveling to the United States, such as Advance Passenger Information and Passenger Name Records; and
  • Countries should not designate individuals for international watchlisting as national security threats or criminals solely based on their political or religious beliefs.

Security risk indicators relevant to the U.S. Government's ability to vet a country's nationals for admissibility to the United States

  • Countries should take measures to ensure that they are not and do not have the potential to become a terrorist safe haven;
  • Countries should accept the repatriation of their nationals who are subject to a final order of removal in the United States and provide travel documents to facilitate their removal;
  • Visa Waiver Program countries should meet the statutory and policy requirements of the Visa Waiver Program.

20-day report to the President

Section 2(b) of Executive Order 13780 required the Secretary of Homeland Security to submit a report to the President, containing the results of the worldwide review and a list of countries "that do not provide adequate information" on their citizens who apply for U.S. visas, admission to the United States, or other U.S. immigration benefits. This report had to be submitted within 20 days after the executive order's effective date. A Ninth Circuit Court of Appeals issued on June 12, 2017 unblocked this portion of the Executive Order, and effectively reset the 20-day clock to begin on June 12, 2017. DOS's July 12, 2017 cable stated that the Section 2(b) report was submitted to President Trump on July 10, 2017.

The Executive Order states that the report should specify what information DHS deems necessary "in order to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat," and that the information DHS requires can differ depending on the country. According to DOS's July 12, 2017 cable, the Section 2(b) report sent to the President on July 10, 2017:

"outlines the new standards that all 191 countries are required to meet for (1) information sharing on identity management and (2) information sharing on security and public safety threats. The standards reflect a mix of long-standing U.S. government goals and standards established by international bodies such as the United Nations (UN), the International Civil Aviation Organization (ICAO), and INTERPOL. The report concluded that three types of information sharing/cooperation are needed to establish a traveler's identity, and four types of information sharing/cooperation are needed to ensure that a traveler is not a terrorist or public safety threat (see para 9). The report also discusses "national security risk indicators" that helped prioritize countries for engagement. Finally, as required under the EO, the report provides a classified list of countries that DHS has preliminarily assessed as not providing adequate information, as well as countries at risk of not providing adequate information.""

DOS's July 12, 2017 cable also clarified that "the list of countries deemed inadequate or at-risk is classified and should not be discussed outside of official channels."

50-day notice to countries identified in the report

Section 2(d) of Executive Order 13780 required the Secretary of State to notify the countries that were listed in the Section 2(b) report that they had 50 days to start providing requested information.  DOS's July 12, 2017 cable described this as a "50-day engagement process," the objectives of which were to:

  • Announce the new standards to all foreign governments and call for compliance with Executive Order 13780.
  • Clarify that the standards require information sharing in support of vetting visa, border, and immigration applications. Information sharing in support of other objectives that may not be used for adjudicating immigration-related applications will not count toward compliance.
  • Inform those governments assessed as not supplying adequate information, or at risk of being so assessed, that we will work with them as they determine how they can meet the new baseline standards.
  • Underscore that while it is not our goal to impose a ban on immigration benefits, including visas, for citizens of any country, these standards are designed to mitigate risk and failure to make progress could lead to security measures by the USG, including a presidential proclamation that would prohibit the entry of certain categories of foreign nationals of non-compliant countries.

A country's failure to supply such information could be due to a political decision to not provide it, a structural or situational incapacity to provide it, or other factors.

Noncompliant countries and the indefinite entry bar

After the 50-day notification clock expired, section 2(e) required the Secretary of Homeland Security, in consultation with the Secretary of State and the Attorney General, to submit to the President:

... "a list of countries recommended for inclusion in a Presidential proclamation that would prohibit the entry of appropriate categories of foreign nationals of countries that have not provided the information requested until they do so or until the Secretary of Homeland Security certifies that the country has an adequate plan to do so, or has adequately shared information through other means. The Secretary of State, the Attorney General, or the Secretary of Homeland Security may also submit to the President the names of additional countries for which any of them recommends other lawful restrictions or limitations deemed necessary for the security or welfare of the United States."

The Washington Post reported that the Department of Homeland Security forwarded this report to the President to the President sometime around September 19, 2017. This report served as the basis for the September 24, 2017 Presidential Proclamation to restrict the entry of citizens from those countries, until the countries begin providing the information the United States has asked the countries to provide.