FordMurray advises that all visa holders and Green Card holders (lawful permanent residents) strongly consider avoiding non-essential international travel at this time.
On January 25, President Trump ordered the Department of Homeland Security and the Department of State to implement “enhanced vetting” of visa applicants. In recent weeks major news outlets have reported on harsh decisions made by the Trump Administration to deny noncitizens entry to the U.S. as well as to revoke Green Cards. Recent reports have also highlighted a new trend of screening noncitizens at the border based upon political content contained in social media posts or on personal cellphones and laptops. Customs and Border Protection has the authority to check personal electronics as part of the re-entry decision.
Therefore, FordMurray recommends that our clients strongly consider avoiding international travel at this time. This recommendation is particularly important for anyone who has made political statements, on social media or elsewhere, which may be perceived by the current administration as opposed to U.S. interests.
It is important to remember that departing the country significantly reduces the right of a noncitizen to secure immigration status in the U.S. Decisions on visa applications at the Embassy and entries at the border are subject to wide discretion by government officers and their decisions are often not eligible for review or appeal. In contrast, remaining within the U.S. affords most noncitizens the right to a hearing, the right to counsel and the right to appellate review before removal from the country.
INA Sec. 212(a)(3)(C) authorizes the government to deny a non-citizen visa application or entry to the U.S. based on “foreign policy” grounds. The Trump Administration appears to be using this authority aggressively. Ultimately, the Supreme Court will need to decide whether the right to free speech outweighs the government’s foreign policy concerns absent a specific national security or diplomatic emergency. At this time the aggressive use of these powers, as demonstrated by the current administration, requires caution.
Potential Travel Ban Being Drafted
Separately, major news outlets have reported that a new Travel Ban is being finalized by the Department of State. The current draft lists over 40 countries to be included in the ban. Some nations may receive visa restrictions rather than an outright ban on entry. The Ban could be implemented at any time. If you hold a passport from any of the nations listed below, and it is included in the final order, the ban will likely apply to you. News reports have stated that exceptions will not be made for current visa holders or Green Card holders.
Nations reported to receive some level of Travel Ban or Visa Restriction:
Afghanistan, Bhutan, Cuba, Iran, Libya, North Korea, Somalia, Sudan, Syria, Venezuela, Yemen, Belarus, Eritrea, Haiti, Laos, Myanmar, Pakistan, Russia, Sierra Leone, South Sudan, Turkmenistan, Angola, Antigua and Barbuda, Benin, Burkina Faso, Cambodia, Cameroon, Cape Verde, Chad, Republic of Congo, Democratic Republic of Congo, Dominica, Equatorial Guinea, Gambia, Liberia, Malawi, Mali, Mauritania, St. Kitts and Nevis, St. Lucia, São Tomé and Príncipe, Vanuatu, Zimbabwe
A new Travel Ban is likely to be upheld by the U.S. Supreme Court once again. INA Sec. 212(f) authorizes the president to ban entry to the U.S. by any group of noncitizens deemed “detrimental to the interests of the United States.” As with the Travel Ban in 2017, the proposed ban is linked to the insufficient security apparatus of the nations listed and is therefore likely to be held in place until the U.S. government deems the security collection and sharing capability of each nation to be adequate.
FordMurray will continue to monitor changes in immigration law and procedure and will update our clients on significant developments.
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