Indefinite Entry Bar Under Executive Order

November 21, 2017

 

On September 24, 2017, President Trump issued a Proclamation 9645 pursuant to Section 2(e) of Executive Order 13780, restricting entry to the United Sates for the nationals of eight countries. The restrictions are country-specific, and tailored to the situation of each individual country.

Read the Proclamation

The eight countries subject to the Proclamation are:

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

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."

This is a new exercise of authority under Executive Order 13780. The prior 90-Day entry ban under Section 2(c) expired on Sunday, September 24, 2017, except for the portion relating to refugees, which expires on October, 24, 2017. The current "list of 8" comprises five countries that had been included in the prior 90-day entry ban (Sudan was removed), and three new countries: Chad, North Korea, and Venezuela.

However, preliminary injunctions issued by U.S. District Courts in Hawaii and Maryland partially block enforcement of the bars on citizens of the following countries: Chad, Iran, Libya, Syria, Yemen, and Somalia, but only if they can establish that they have "a credible claim of a bona fide relationship with a person or entity in the United States." Individuals from those countries who cannot establish such ties are now subject to the bar on entry. The bars on North Korea and Venezuela were not included in the preliminary injunctions, and remain in effect. See NAFSA's Travel Ban Litigation Updates page for details.

Navigate this advisory

Countries and Conditions

Nationals of the following eight 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

Preliminary injunctions issued by U.S. District Courts in Hawaii and Maryland currently block enforcement of the bars on citizens of the following countries: Chad, Iran, Libya, Syria, Yemen, and Somalia, but only if they can establish that they have "a credible claim of a bona fide relationship with a person or entity in the United States." Individuals from those countries who cannot establish such ties are now subject to the bar on entry. See NAFSA's Travel Ban Litigation Updates page for details. The following types of entry originally suspended for nationals of this country by Proclamation 9645 are now suspended only for individuals who cannot establish that they have "a credible claim of a bona fide relationship with a person or entity in the United States."

  • 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 Chad in the Proclamation

Iran

Preliminary injunctions issued by U.S. District Courts in Hawaii and Maryland currently block enforcement of the bars on citizens of the following countries: Chad, Iran, Libya, Syria, Yemen, and Somalia, but only if they can establish that they have "a credible claim of a bona fide relationship with a person or entity in the United States." Individuals from those countries who cannot establish such ties are now subject to the bar on entry. See NAFSA's Travel Ban Litigation Updates page for details. The following types of entry originally suspended for nationals of this country by Proclamation 9645 are now suspended only for individuals who cannot establish that they have "a credible claim of a bona fide relationship with a person or entity in the United States."

  • 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

Preliminary injunctions issued by U.S. District Courts in Hawaii and Maryland currently block enforcement of the bars on citizens of the following countries: Chad, Iran, Libya, Syria, Yemen, and Somalia, but only if they can establish that they have "a credible claim of a bona fide relationship with a person or entity in the United States." Individuals from those countries who cannot establish such ties are now subject to the bar on entry. See NAFSA's Travel Ban Litigation Updates page for details. The following types of entry originally suspended for nationals of this country by Proclamation 9645 are now suspended only for individuals who cannot establish that they have "a credible claim of a bona fide relationship with a person or entity in the United States."

  • 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

Preliminary injunctions issued by U.S. District Courts in Hawaii and Maryland currently block enforcement of the bars on citizens of the following countries: Chad, Iran, Libya, Syria, Yemen, and Somalia, but only if they can establish that they have "a credible claim of a bona fide relationship with a person or entity in the United States." Individuals from those countries who cannot establish such ties are now subject to the bar on entry. See NAFSA's Travel Ban Litigation Updates page for details. The following types of entry originally suspended for nationals of this country by Proclamation 9645 are now suspended only for individuals who cannot establish that they have "a credible claim of a bona fide relationship with a person or entity in the United States."

  • 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

Preliminary injunctions issued by U.S. District Courts in Hawaii and Maryland currently block enforcement of the bars on citizens of the following countries: Chad, Iran, Libya, Syria, Yemen, and Somalia, but only if they can establish that they have "a credible claim of a bona fide relationship with a person or entity in the United States." Individuals from those countries who cannot establish such ties are now subject to the bar on entry. See NAFSA's Travel Ban Litigation Updates page for details. The following types of entry originally suspended for nationals of this country by Proclamation 9645 are now suspended only for individuals who cannot establish that they have "a credible claim of a bona fide relationship with a person or entity in the United States."

  • 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

Preliminary injunctions issued by U.S. District Courts in Hawaii and Maryland currently block enforcement of the bars on citizens of the following countries: Chad, Iran, Libya, Syria, Yemen, and Somalia, but only if they can establish that they have "a credible claim of a bona fide relationship with a person or entity in the United States." Individuals from those countries who cannot establish such ties are now subject to the bar on entry. See NAFSA's Travel Ban Litigation Updates page for details. The following types of entry originally suspended for nationals of this country by Proclamation 9645 are now suspended only for individuals who cannot establish that they have "a credible claim of a bona fide relationship with a person or entity in the United States."

  • 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

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 contains two effective date phases:

  • September 24, 2017 at 3:30 p.m. EDT
  • October 18, 2017 at 12:01 a.m. EDT

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

The October 18, 2017 effective date applies to all nationals of Chad, North Korea, and Venezuela, and 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."

The "bona fide relationship" distinction is a legacy of the Court orders surrounding the litigation against the prior 90-day entry ban. Basically, it means that nationals of Iran, Libya, Syria, Yemen, and Somalia who do not benefit from those Court orders because they lack a "bona fide relationship with a person or entity in the United States" are subject to the new Proclamation immediately. All other foreign nationals from the new "list of 8" countries will become subject to the Proclamation on October 18, 2017. On that date, the Court order protecting those with "bona fide relationships" from the 90-day entry bar will no longer be applicable, unless subsequent litigation succeeds in reestablishing that protection under the Proclamation's entry bar.

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."

However, preliminary injunctions issued by U.S. District Courts in Hawaii and Maryland currently block enforcement of the bars on citizens of the following countries: Chad, Iran, Libya, Syria, Yemen, and Somalia, but only if they can establish that they have "a credible claim of a bona fide relationship with a person or entity in the United States." Individuals from those countries who cannot establish such ties are now subject to the bar on entry. The bars on North Korea and Venezuela were not included in the preliminary injunctions, and remain in full effect. See NAFSA's Travel Ban Litigation Updates page for details.

Bona Fide Relationship with a Person or Entity in the United States

Preliminary injunctions issued by U.S. District Courts in Hawaii and Maryland currently block enforcement of the bars on citizens of the following countries: Chad, Iran, Libya, Syria, Yemen, and Somalia, but only if they can establish that they have "a credible claim of a bona fide relationship with a person or entity in the United States" (See NAFSA's Travel Ban Litigation Updates page for details). Individuals from those countries who cannot establish such ties are now subject to the bar on entry.

Discussion: "bona fide relationship with a person or entity in the United States"

The standards for determining the scope of a qualifying relationship under the preliminary injunctions on the Proclamation 9645 travel ban will likely be the same standards that were formulated in the litigation over Travel Ban 2.0. And so for now:

The "bona fide relationship with a person or entity in the United States" standard is based on the June 26, 2017 U.S. Supreme Court decision, which held that the Section 2(c) 90-day travel ban of Executive Order 13789 "may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States."

Relationship to a person in the United States

A DOS Alert further defines "close familiar relationship" as a:

  • Parent (including parent-in-law)
  • Spouse
  • Fiancé
  • Child
  • Adult son or daughter
  • Son-in-law
  • Daughter-in-law
  • Sibling
  • Grandparent
  • Grandchild
  • Brother-in-law
  • Sister-in-law
  • Aunt
  • Uncle
  • Niece
  • Nephew and
  • Cousin (first cousins only)
  • The above relationships also include half or step status

The above list is a result of litigation and agency guidance relating to the prior 90-day Travel Ban 2.0. The June 26, 2017 U.S. Supreme Court decision on that ban stated that "a close familial relationship is required" for a relationship with a person in the United States to serve as the basis for an exception to the 90-day travel ban. Agency guidance originally stated that "'close family' did not include grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers- and sisters-in-law, and any other 'extended' family members." However, on July 13, 2017, the U.S. District Court for the District of Hawaii ruled that the administration's definition of "close family relationship" was overly narrow, and modified its injunction to add grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins to the list of close family members that are exempt from the 90-day travel ban. On July 14, 2017, the Justice Department appealed this expansion order to the Ninth Circuit Court of Appeals, and filed a motion with the U.S. Supreme Court to clarify the June 26, 2017 SCOTUS decision and to stay the Hawaii Court's expansion order. On July 19, 2017, the Supreme Court denied in part the Justice Department's motion to stay, upholding the Hawaii Court's expanded list of "close family."

Relationship to an entity in the United States

An individual from Chad, Iran, Libya, Syria, Yemen, or Somalia might also be exempt from the Proclamation 9645 travel ban if he or she has a bona fide relationship with an entity in the United States.
The DOS Alert further states that "a credible claim of a bona fide relationship with a “U.S. entity” must be formal, documented, and formed in the ordinary course rather than for the purpose of evading suspension of entry under the P.P. (presidential proclamation)." A U.S. school, exchange visitor program, or employer should normally constitute an "entity" for this purpose.

These requirements for a qualifying relationship with a U.S. entity also stem from prior litigation surrounding the 90-day Travel Ban 2.0. The June 26, 2017 U.S. Supreme Court decision on Travel Ban 2.0 stated that the relationship with an entity "must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading EO–2" (i.e., Executive Order 13780). A Department of State cable from that time gave the following examples of relationships with an entity in the United States that would qualify for an exception to the 90-day travel ban, and should likely qualify under the preliminary injunction on Proclamation 9645 as well:

  • "An eligible I visa applicant employed by foreign media that has a news office based in the United States would be covered by this exemption"
  • "Students from designated countries who have been admitted to U.S. educational institutions have a required relationship with an entity in the United States"
  • "A worker who accepted an offer of employment from a company in the United States or a lecturer invited to address an audience in the United States would be exempt."

The Department of State cable noted that some visa categories would be presumed to be exempt from the travel ban, because a "bona fide relationship to a person or entity is inherent in the visa classification."

  • Regarding nonimmigrant visas, the Department of State cable notes that if a consular official determines that "an applicant has established eligibility for a nonimmigrant visa in a classification other than a B, C-1, D, I, or K visa, then the applicant is exempt from the E.O., as their bona fide relationship to a person or entity is inherent in the visa classification. Eligible derivatives of these classifications are also exempt."
  • Regarding immigrant visas, the Department of State cable notes that if a consular official determines that "an applicant has established eligibility for an immigrant visa in the following classifications - immediate relatives, family-based, and employment-based (other than certain self-petitioning employment-based first preference applicants with no job offer in the United States and SIV applicants under INA 101a(27)) - then the applicant and any eligible derivatives are exempt from the E.O."

In terms of documenting eligibility for an exception to the 90-day travel ban:

  • Students and exchange visitors
    • The Department of State cable stated that "students from designated countries who have been admitted to U.S. educational institutions have a required relationship with an entity in the United States.
    • An F-1 or M-1 student or J-1 exchange visitor should be able to establish this formal relationship with a U.S. school or program sponsor serving as the "U.S. entity," and the school's issuance of a Form I-20 or DS-2019 and a properly maintained SEVIS record as the formal documentation of that relationship.
    • Students on post-completion OPT and STEM OPT and exchange visitors on post-completion academic training should also be viewed as having the requisite relationship to a U.S. entity.
    • The Department of State cable stated that establishing eligibility for a nonimmigrant visa other than "B, C-1, D, I, or K" may be considered a per se exception, "as their bona fide relationship to a person or entity is inherent in the visa classification."
    • Following the Department of State cable guidance that stated "eligible derivatives of these classifications are also exempt," properly documented F-2, M-2, and J-2 dependents from Chad, Iran, Libya, Syria, Yemen, or Somalia should also be exempt from the Proclamation 9645 travel ban.
     
  • Employment-based nonimmigrants
    • An employee should be able to establish the formal relationship with a U.S. employer serving as the "U.S. entity," and the employer's offer of employment and approved employment-based petition as the formal documentation of that relationship. This would cover employment-based nonimmigrants such as H-1B and O-1.
    • The Department of State cable states that establishing eligibility for a nonimmigrant visa other than "B, C-1, D, I, or K" may be considered a per se exception, "as their bona fide relationship to a person or entity is inherent in the visa classification."
    • Following the Department of State cable guidance that states, "eligible derivatives of these classifications are also exempt," properly documented H-4 and O-1 dependents from Chad, Iran, Libya, Syria, Yemen, or Somalia should also be exempt from the Proclamation 9645 travel ban.
     
  • B visitors
    • Although the DOS cable did not recognize a B visitor visa as having an inherent relationship to a person or entity in the United States, an applicant could still document such a relationship on a case-by-case basis for purposes of coming within the exception. For instance, the Supreme Court referenced "a lecturer invited to address an American audience" as an example of an adequate relationship to an entity in the United States.
    • By the same token, other, weaker relationships might not serve as the basis for the court-ordered exception to the travel ban. For example, both the Supreme Court and DOS state that "a nonprofit group devoted to immigration issues may not contact foreign nationals from the designated countries, add them to client lists, and then secure their entry by claiming injury from their exclusion."
    • Likewise, the Department of State cable states that "a hotel reservation, whether or not paid, would not constitute a bona fide relationship with an entity in the United States."
     
  • Immigrants
    • The Department of State cable states that "if you determine an applicant has established eligibility for an immigrant visa in the following classifications - immediate relatives, family-based, and employment-based (other than certain self-petitioning employment-based first preference applicants with no job offer in the United States and SIV applicants under INA 101a(27)) - then the applicant and any eligible derivatives are exempt from the E.O." The same should hold true for citizens of Chad, Iran, Libya, Syria, Yemen, or Somalia under the preliminary injunctions on the Proclamation 9645 travel ban.
     

Individuals from Chad, Iran, Libya, Syria, Yemen, or Somalia who cannot establish a bona fide relationship with an entity in the United States, as well as citizens of Venezuela and North Korea, would have to establish eligibility under some other exception or exemption provided for by Proclamation 9645 itself. These other exceptions and exemptions are discussed below.

Exemptions and Exceptions

General Exemption

Under Proclamation 9645 Section 3(a), the entry ban generally applies only to nationals of subject countries who are outside the United States and do not have 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:

  • Are inside the United States as of the applicable effective date; or
  • Have 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."

It is likely that the process to apply for a waiver would be similar to the waiver process envisioned for the prior 90-day entry bar. Under that process, there is no separate "waiver application." Instead, an individual who believes he or she is eligible for a waiver would apply for the visa as normal, but include information that supports his or her eligibility for a waiver. We expect the Department of State to issue field guidance that will clarify the process.

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.

The determination of countries to include in the Section 2(b) Report is not connected to the 6 countries subject to the 90-day entry bar under Section 2(c). 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 had 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.

Summary and estimated timeline

To summarize, DHS was required to make a recommendation of countries to be included in an eventual Presidential proclamation. This recommendation was based in large part on the list of countries that do not provide requested information on its citizens who apply for U.S. visas or immigration benefits, after having received a 50-day notice to do so. The "indefinite" entry bar under Section 2(e) became effective on the date specified in the proclamation issued by President Trump on September 24, 2017. The visa and entry bars will remain in effect until a listed country begins complying with U.S. government information requests to the satisfaction of the United Sates. Here is the 2(e) entry bar timeline, based on the provisions of the March 6, 2017 executive order and subsequent litigation:

June 12, 2017

Although the executive order became effective on March 6, 2017, all of Section 2 was blocked before that effective date by an injunction issued by the U.S. District Court in Hawai'i. On June 12, 2017, the Ninth Circuit Court of Appeals lifted the portion of the injunction that blocked the government study called for by Section 2(a), which is connected to the Section 2(e) indefinite entry bar. On June 26, 2017, the Supreme Court confirmed the lifting of the injunction on the Section 2(a) study. The Department of Homeland Security had 20 days from June 12, 2017 to complete a "worldwide review" of the information it needs from each country, and to identify countries that do not adequately provide such information.

July 10, 2017

The 20-day report was sent to President Trump on July 10, 2017. A July 12, 2017 Department of State cable instructed consular posts to begin a "50-day engagement period" of notifying countries that they must begin providing the type of information required by the 20-day report.

September 19, 2017 - On or about.

After the expiration of the 50-day notice period, the Secretary of Homeland Security sent a list of "recalcitrant" countries to the President for inclusion in a possible Presidential proclamation.

September 24, 2017

President Trump issued a Presidential proclamation that subjects certain countries to an entry bar or other conditions. A country's place on list is based on an assessment that it does not provide adequate information to the United States on their citizens who apply for U.S. visas, admission to the United States, or other U.S. immigration benefits.

September 24, 2017 or October 18, 2017

The entry bars become effective for listed countries. The bar or 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."

October 17, 2017

However, preliminary injunctions issued by U.S. District Courts in Hawaii and Maryland currently block enforcement of the bars on citizens of the following countries: Chad, Iran, Libya, Syria, Yemen, and Somalia, but only if they can establish that they have "a credible claim of a bona fide relationship with a person or entity in the United States." Individuals from those countries who cannot establish such ties are now subject to the bar on entry. The bars on North Korea and Venezuela were not included in the preliminary injunctions, and remain in full effect. See NAFSA's Travel Ban Litigation Updates page for details.