07 April 2020 - Article
This article was initially published by Law360 on January 22, 2020, and features commentary by Withers’ Reaz Jafri.
President Donald Trump’s plan to add more countries to his so-called travel ban list could send major business with foreign companies elsewhere and worsen an already lengthy backlog for waiver requests.
Trump confirmed reports Wednesday that his administration is planning to expand existing visa limits — which currently target seven countries — to restrict travel of citizens from additional countries, three years after the administration handed down the initial ban.
“We’re adding a couple of countries to it. We have to be safe, our country has to be safe. You see what’s going on in the world,” Trump told reporters at a press conference in Davos, Switzerland.
The president wouldn’t confirm which new countries would be added, saying only that it “will be announced very shortly,” but several news outlets have reported that Belarus, Eritrea, Kyrgyzstan, Myanmar, Nigeria, Sudan and Tanzania are on the list of possible contenders.
While some of those countries send few immigrants and travelers to the U.S., restricting entry for citizens of more populous countries like Nigeria could present hurdles for American companies working with businesses there if executives are unable to attend meetings in the U.S.
Reaz Jafri, a partner at international law firm Withers LLP, has already spoken to one of his Nigerian clients, a major oil and gas company working with a U.S. firm on a project in Louisiana, to prepare itself for possible travel restrictions after news of the upcoming expansion leaked.
“I’m sure the project will continue, but it’s bad business to exclude your business partners,” Jafri said.
And businesses that have yet to partner with U.S. firms might be forced to table those plans under new travel restrictions, attorneys said.
“If businesses can’t do business in the U.S. with the talent that they need, they’ll go elsewhere,” said Ally Bolour, a California immigration lawyer and director of the American Immigration Lawyers Association’s board of governors.
Jafri said he’s seen a decline in his international clients looking to travel to the U.S. for business meetings since the ban was handed down, a trend that will likely continue with the addition of more countries with business ties to the U.S.
Relatives of Americans and people hoping to move to the U.S. for job offers may be willing to wait months or even years for a waiver, but for business travel, his clients haven’t bothered to try for a visa waiver, he explained.
“A businessperson isn’t going to wait six months or a year to come to the U.S.,” Jafri said. “They’ll meet the client elsewhere.”
This reluctance to travel to the U.S. for business extends beyond citizens from countries targeted by the travel ban, he said, describing what he called a “contagion effect” that keeps people from other countries away too.
Confirmation of the upcoming expansion comes exactly three years after Trump handed down the first version of his ban, preventing citizens from several Muslim-majority nations from entering the U.S.
The January 2017 proclamation drew an outcry from advocates and chaos at airports. Federal judges blocked the first two versions of the ban, but in June 2018, the U.S. Supreme Court upheld the third version, which restricted travel for citizens of eight countries: Iran, Libya, North Korea, Syria, Venezuela, Yemen, Somalia and Chad. Restrictions against Chad have since been lifted.
The administration also implemented a waiver process for people from those countries who don’t pose a national security threat to come to the U.S. However, that process has been plagued by delays, keeping many binational families separated.
The U.S. Department of State said last year that it had implemented a new automated pre-vetting system to speed up that process.
The Trump administration hasn’t released details yet on the upcoming expansion, leaving attorneys to guess how sweeping the upcoming restrictions might be for each ban. Under the existing ban, the travel restrictions against Venezuela apply only to government officials, for example, while the restrictions against Iran bar all immigrant and non-immigrant visa applicants, but not students.
The administration has also not released any information about what a waiver process might look like for any added countries, and a State Department representative didn’t immediately respond to a request for more details on Wednesday.
But attorneys fear that adding more countries will lengthen the wait times for visa waivers, not only subjecting new categories of people to the backlog, but also keeping visa seekers subjected to the existing version of the ban languishing in the queue for longer.
Los Angeles-based immigration lawyer Curtis Morrison, who represents visa applicants from travel ban countries — mostly Iranians — in lawsuits against the State Department, worried that adding new people to the visa line will only keep clients like his in limbo longer.
Morrison says he has clients who have waited more than 700 days for visa approval. That visa backlog had reached 17,000 cases in September.
“Now they’re going to pour more visa applicants in that process that doesn’t work,” he said. “They’re taking a bad process and making it worse.”
Bolour, who also represents individuals subject to the travel ban, said that while there are still a few cases stuck in administrative processing, he’s seen faster visa approvals under the new automated process rolled out last summer. But he said he’s not confident the department is ready to take on more people seeking visas through the waiver system, given that it took more than two years after the initial ban for the department to automate the process.
“I do fear that this is going to cause further delays and increase the backlog,” Bolour said. He added that he hopes that government officials, who are under “enormous strain,” can “step up and meet the challenges.”
Jonathan Meyer, a partner at Sheppard Mullin Richter & Hampton LLP who helped manage a different waiver system while serving as deputy general counsel at the U.S. Department of Homeland Security during the Obama administration, added that managing such a system is a “difficult and labor-intensive process.”
“I would think if there’s already a backlog, it’s going to get much worse,” Meyer said.
News of the upcoming travel ban expansion has already prompted backlash.
Muslim Advocates, a civil rights group, promptly slammed the planned expansion of the travel restrictions, with a statement from executive director Farhana Khera on Wednesday calling the move a “cowardly and reckless attempt to distract the country and sow anti-Muslim hate.”
But advocates who wish to challenge an expanded ban in court would face an uphill battle, attorneys say.
With the U.S. Supreme Court already upholding the president’s authority to suspend categories of immigrants for national security purposes in Trump v. Hawaii , Meyer said the high court would not likely overturn the expanded version.
He said that the strongest criticism of an expanded ban, if the final list of added countries is similar to the one reportedly under consideration, would be a policy criticism: questioning the rationale behind the new countries added.
“If this is really about security and fear of people coming from countries and harming the U.S., why, for example, is Saudi Arabia not on the list?” Meyer said. “That’s where the administration would face the toughest questions, of why are these countries viewed as insecure when some other countries are not.”
Shoba Sivaprasad Wadhia, a professor at Penn State Law in University Park, Pennsylvania and director of its immigrants’ rights clinic, agreed that challenging the sufficiency of the administration’s explanations for adding certain nations would provide a possible avenue to bring a lawsuit over the new travel restrictions.
Additionally, if the scope of the expanded version is wider than the initial ban — for example, if it blocked green card holders from those countries — challengers could also lodge a potentially successful suit, she said.
“The devil will be in the details and in the implementation of those details,” Wadhia said.
But the ball could ultimately be in Congress’ court, which is locked in a legislative stalemate over immigration reform.
In a statement, Khera of Muslim Advocates called on Congress to “do everything possible to end this cruelty right now” and pass the NO BAN Act, a draft bill — which has earned the support of tech giants and immigration scholars alike — that would terminate the travel ban and limit the president’s authority to suspend entry of entire nationalities in the future.
Wadhia, who had a hand in drafting the NO BAN Act, said that while a favorable court ruling isn’t impossible, a congressional fix is the best long-term solution for those who oppose the travel ban.
“Without any legislation, the one legal standard that would be followed is the outcome in the Hawaii case,” she said. “In the long-term, we do need legislation. And the NO BAN Act is the kind of legislation that will set limiting principles on the immigration statute and really prevent the kind of expansion or current ban that is operating.”
A White House spokesperson didn’t respond to a request for comment.