For the month of September, final action dates for several employment-based visa categories retrogressed. This is hardly surprising as t
On June 26, 2018, in a 5-4 decision, the United States Supreme Court ruled to uphold the Proclamation No. 9645, commonly known as the Travel Ban. In doing so, the Supreme Court overturned the decision of the Hawaii district court, which happened in March 2017 in the case TRUMP v. HAWAII, in which the Hawaii district court placed a temporary restraining order on the travel ban policy as the court judged that the policy was motived by anti-Islam sentiment and was in breach of the Establishment Clause.
The Proclamation 9645 is the third rendition of the travel ban, with the first being the Executive Order 13769, which was signed on January 27, 2017. The major points of this executive order included
Prioritization of refugee claims by foreign nationals belonging to minority religions.
This executive order caused up to 60,000 visas to be temporarily revoked, and the detainment of over 700 travelers. The executive order was widely criticized and challenged. On February 3, 2017, a temporary restraining order was placed on several portions of the executive order in the case of Washington v. Trump. This led to the issuance of the second travel ban - Executive Order 13780 on March 6, 2017. President Trump referred to the second travel ban as "watered down, politically correct version" of the first ban. Major points of the executive order 13780 included -
This new executive order was restrained by a temporary restraining order issued by Judge Derrick Watson of the United States District Court for the District of Hawaii, which stopped the government from enforcing several provisions of the order. The Supreme Court partially upheld the executive order on June 26, 2017, in response to an appeal by the Trump administration. The third rendition of the travel ban came on September 24, 2017. Called the Presidential Proclamation 9645, this proclamation expanded on and defined the previous executive order. Under this proclamation, countries affected by the ban include Chad, Libya, Iran, North Korea, Syria, Somalia, Venezuela, and Yemen. Sudan, which was present in the previous executive order, was removed. In April 2018, Chad was removed from the list of nations affected by the ban, as the nation met “the baseline security standard of the United States”.
On June 26, 2018, Supreme Court ruled to uphold the Proclamation No. 9645.
Chief Justice John Roberts gave the majority opinion joined by Justice Samuel Alito, Justice Neil Gorsuch, Justice Clarence Thomas, and Justice Anthony Kennedy. Justice Clarence Thomas and Justice Anthony Kennedy, in addition, filed concurring opinions. Justice Sonia Sotomayor also filed a dissenting opinion joined by Justice Ruth Bader Ginsburg. Justice Stephen Breyer filed a dissenting opinion, in which Justice Elena Kagan joined.
According to Chief Justice John Roberts, two main issues were the focus of the ruling these include
Does President Trump exceed his authority under the INA? As according to the majority opinion delivered by the Chief Justice Roberts, the Supreme Court rules that the restrictions imposed were in fact within the core executive responsibility and that the Supreme Court does not have the necessary competence needed to substitute its own judgment for the resident’s when it comes to matters of national security. Moreover, given the administration’s worldwide, multi-agency review process, the waivers and exemptions included in the proclamation, the proclamation can reasonably be comprehended be as a result from a justification independent of unconstitutional grounds.
Not every Justice agreed, Justice Breyer dissented focusing on the waiver program and other exemptions of the proclamation. He cited anecdotal evidence, selective statistics, and a declaration from an unrelated litigation as evidence that not enough foreign national are benefiting from the exemptions or the waivers.
Does the Proclamation violate the Establishment Clause of the First Amendment? The argument that religious hostility against Islam is one of the factors that motived this proclamation was considered. The respondents claimed that the proclamation was not motived by national security concern but by animus towards Muslims. The government, in turn, argued that although many of the nations the ban is imposed on are Muslim-majority counties, the majority of Muslim-majority countries are not subject to the restrictions. The court, therefore, decided that the restrictions are facially neutral toward religion. Justice Robert drew attention to the fact that the proclamation covered only 8 percent of the global Muslim population, and included countries that in the past have been designated by past administrations or Congress as posing a national security threat. In addition, Justice Robert expressed that three Muslim majority countries have also been removed from the policy.
Although according to the proclamation, foreign nationals of almost all the countries restricted by the travel ban are permitted enter the United States on a variety of nonimmigrant visas, only certain foreign nationals on particular nonimmigrant and immigrant statuses can gain entry into the U.S.
Currently, affected countries include Iran, Libya, Yemen, Syria, North Korea, Somalia, and Venezuela.
Also, the proclamation exempts the following - lawful permanent residents, foreign nationals granted asylum or refugees, those with certain travel documents, parolees, Representatives of governments or international organizations, dual nationals of noncovered countries.
In concluding the majority opinion, Chief Justice Roberts expressed that three added features to the entry policy support the government's claim that the proclamation is of legitimate national security. This includes the removal of three Muslim-majority countries - Chad, Sudan and Iraq from the list of restricted countries since the introduction of the travel ban in January 2017. Secondly, with the countries still under entry restriction, several exceptions have been made to several visa categories such as allowing persons with F, J and M visa statuses from Iran, and other nations under the ban entry into the United States. Thirdly, the waver program created by the proclamation is available to all applied to those seeking nonimmigrant or immigrant entry into the U.S. As such, “the Government has set forth a sufficient national security justification to survive rational basis review.”
Released every month, the USCIS releases a visa bulletin. This bulletin informs immigrant visa applicants if they are qualified to submit the necessary documentation and application. For the month