After lower courts rejected previous versions of the Trump travel ban, the U.S. Supreme Court has upheld the Trump administration's so-called Travel Ban 3.0 in a 5-to-4 decision. Travel Ban 3.0 applies to individuals from seven different countries, five of which have Muslim majorities. More specifically, the ban indefinitely suspends all immigrant and nonimmigrant visas to applicants from Iran, Somalia, Libya, Syria, and Yemen, whose citizens are predominantly Muslim, as well as applicants from North Korea and Venezuela.
Practical Effects of Travel Ban 3.0
This ban potentially impacts more than 135 million people, most of whom are from the five Muslim majority countries. Arguably, the ban has the greatest impact on Iran, which has over 80 million citizens. Iran has a long history of students coming to the U.S. to further their education, as well as almost a million Iranian-Americans now residing in the U.S. According to the National Iranian American Council, many Iranians are opting to study elsewhere because of the difficulties imposed by this ban.
Waivers to the Ban Rarely Granted
The high Court ruled that Travel Ban 3.0 was not a ban on Muslims, as many critics claim, for two reasons. First, the ban does contain exceptions or waivers for certain individuals from the countries impacted by the ban. Consular officers who review visa applications have the general discretion to grant these waivers based on three main factors:
- Whether denying entry to the U.S. would create an undue hardship;
- Whether the applicant represents a threat to national security; and,
- Whether granting entry would be in the national interest.
While it is not clear how many waivers are being granted, the State Department reported that as of April 30, 2018, only about two percent of the waiver applications had been granted. The State Department also released a statement indicating that almost 1,000 applicants had been cleared for a waiver as of July 15, 2018. However, there is no information concerning whether all or any of these applicants actually have received their visas.
Ban Places Minimal Restrictions on North Korea and Venezuela
The Supreme Court also upheld Travel Ban 3.0 as a legitimate exercise of presidential authority because it includes restrictions on visa applicants from North Korea and Venezuela, which are not Muslim-majority countries. Some immigration advocates, however, state that the ban on Venezuela visa applicants affects only a small number of government officials and their families. The travel ban has practically no impact on North Korea at all, since the North Korean government permits very few of its citizens to travel to the U.S. under any circumstances.
Pending Challenges to the Waiver Process
While it is not clear how many waivers are being granted, the State DepartmentAs a result of the Court's ruling, the Center for Constitutional Rights and Muslim Advocates filed a lawsuit seeking clarity on the requirements and standards for receiving a waiver to Travel Ban 3.0. This lawsuit follows the organization's failed attempts to obtain this information through a Freedom of Information Act request from the U.S. government after the Trump administration issued the ban in December 2017. Additionally, the Immigrant Advocacy & Litigation Center, PLLC filed a suit entitled Emami v. Nielsen
in the U.S. District Court for the Northern District of California, which requests that the Trump administration explain how it grants waivers under the ban. The suit also seeks an explanation of the apparent contradiction between the administration's description of the waiver program as “clear and generous” and the fact that consular officials are granting very few waiver applications. One or our clients is named plaintiff in this lawsuit.reported that as of April 30, 2018, only about two percent of the waiver applications had been granted. The State Department also released a statement indicating that almost 1,000 applicants had been cleared for a waiver as of July 15, 2018. However, there is no information concerning whether all or any of these applicants actually have received their visas.