Court Order on Presidential Proclamation on Visas

On November 13, the U.S. Court of Appeals for the Ninth Circuit granted, in part, the government’s motion for an emergency stay of the U.S. District Court for the District of Hawaii’s October 17, preliminary injunction. The preliminary injunction prohibited the U.S. government from enforcing or implementing Sections 2(a), (b), (c), (e), (g), and (h) of Presidential Proclamation 9645, “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or other Public-Safety Threats.” Under the Ninth Circuit’s ruling, the earlier preliminary injunction is stayed, except as to “foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.” In light of the Ninth Circuit’s ruling, visa applicants who are nationals of Chad, Iran, Libya, Syria, Somalia, and Yemen and do not have a credible claim of a bona fide relationship with a person or entity in the United States are now subject to the applicable visa restrictions under the Presidential Proclamation. Consequently, any applicants who lack such a claim, if found otherwise eligible for a visa, will be denied under the Proclamation, unless they are exempt or qualify for a waiver under the Proclamation. The court orders did not affect Sections (d) and (f) of the Proclamation, so nationals from North Korea and Venezuela remain subject to the restrictions and limitations listed in the Presidential Proclamation, which went into effect at 12:01 a.m. EDT on Wednesday, October 18, 2017, with respect to nationals of those countries.

Additional Background:  The President issued Presidential Proclamation 9645 on September 24, 2017.  Per Section 2 of Executive Order 13780 of March 6, 2017 (Protecting the Nation from Foreign Terrorist Entry Into The United States), a global review was conducted to determine what additional information is needed from each foreign country to assess whether foreign nationals who seek to enter the United States pose a security or safety threat.  As part of that review, the Department of Homeland Security (DHS) developed a comprehensive set of criteria to evaluate the information-sharing practices, policies, and capabilities of foreign governments on a worldwide basis.  At the end of that review, which included a 50-day period of engagement with foreign governments aimed at improving their information sharing practices, there were seven countries whose information sharing practices were determined to be “inadequate” and for which the President deemed it necessary to impose certain restrictions on the entry of nonimmigrants and immigrants who are nationals of these countries.  The President also deemed it necessary to impose restrictions on one country due to the “special concerns” it presented.  These restrictions are considered important to addressing the threat these existing information-sharing deficiencies, among other things, present to the security and welfare of the United States and pressuring host governments to remedy these deficiencies.

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