Muslim Travel Bans End in January 2021, Under Biden Administration

January 21, 2021 President Biden immediately reverses the Trump-era Muslim travel bans, opening the way to visa applications for people from 13 countries.

By , J.D.

** LEGAL UPDATE **

Over the four years of the Trump Administration, Donald Trump issued a series of Executive Orders outlining country-specific temporary restrictions on the issuance of visas. These travel bans purported to restrict entry to the U.S. by nationals of certain countries based on three criteria, namely whether:

  • their country had reliable identity documents and shared identity management information with the United States
  • their country shared relevant national security and safety information with the United States, and
  • their country posed a national security or public safety risk.

Many people observed, however, that the countries chosen were in most cases largely populated by people of the Muslim faith. Meanwhile, many non-Muslim countries were left off the list, despite seeming to fit the criteria. Hence the collected orders are often referred to as the "Muslim Ban."

This led to much legal wrangling (reviewed in greater detail below). In January of 2021, however, newly inaugurated President Joe Biden put an end to much of the arguments and litigation by issuing a Proclamation on Ending Discriminatory Bans on Entry to The United States.

What's in Biden's Proclamation on Ending Discriminatory Bans on Entry to The United States

Biden's Executive Order repeals two Trump-era proclamations (Proclamation 9645 or 9983), which had banned people from the following 13 countries from obtaining visas to travel, work or immigrate to the United States:

  • Iran
  • Libya
  • Somalia
  • Syria
  • Yemen
  • Venezuela
  • North Korea
  • Myanmar
  • Eritrea
  • Kyrgyzstan
  • Nigeria
  • Sudan
  • Tanzania.

Biden's order stated, "Those actions are a stain on our national conscience and are inconsistent with our long history of welcoming people of all faiths and no faith at all." Although reiterating that, as always, the U.S. "will apply a rigorous, individualized vetting system" to visa applicants, and will attempt to further improve that system, it directs U.S. consulates in these previously banned countries to resume visa processing.

The order also asks the relevant federal agencies for a report on how many people are waiting for decisions on waiver requests, and directs these agencies to create a plan for expeditiously deciding on those. Also, it requests that the agencies propose a method for making sure that people whose immigrant visa applications were denied can now have their applications quickly reconsidered.

Of course, as the Biden order also mentioned, people from some of these countries might separately be affected by COVID-19 travel restrictions.

Background on Trump's Efforts to Maintain the Muslim Travel Ban

The Fourth Circuit federal court expressed what many were thinking about the Trump travel bans, finding that not only did the ban violate the U.S. Constitution, but that it "speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination."

The legality of Trump's travel bans were challenged in court on multiple occasions. In response, the Trump Administration rewrote the bans more than once, adding restrictions and deleted others, and carving out exceptions and waivers. These waivers were, however, virtually impossible to obtain (which is why the Biden order demands a separate plan for these).

While the lawsuits were ongoing, the Supreme Court partially upheld the travel bans in 2018, stating that they come within the President's broad powers over immigration and national security. The Court also stated that the President "lawfully executed his broad discretion" to prevent the entry of noncitizens whose entry would "be detrimental the interests of the United States" because of the security risk posed.

Nevertheless, the lawsuits weren't over. Both advocates and many judges continue to look skeptically upon these country-based or "Muslim" travel bans. Whether Biden's order will similarly inspire lawsuits from Trump-adherents remains to be seen.

What's Next for People Affected by Travel Ban

New applicants for visas from the affected country should no longer face barriers to U.S. entry. Unfortunately, the news isn't as good for all categories of people whose past visa applications were denied.

The Department of State declared, after a review of the matter that:

  • People whose immigrant visa applications received a final refusal on or after January 20, 2020 due to Trump's Proclamations may seek re-adjudication without resubmitting their application forms or paying any additional fees, so long as the underlying visa petitions (such as an I-130 or I-140) remain valid.
  • People whose immigrant visa applications were denied before January 20, 2020 may also be reconsidered, but will have to submit new applications and fee.
  • Diversity visa applicants (FY 2017 – FY 2020) who were not issued visas owing to the Proclamations will NOT be able to move forward or receive visas based on having "won" after registering, owing to the fact that the deadlines for visa issuance in those fiscal years have passed.

For more on this, see the DOS's March, 2021 announcement.

Effective Date: January 21, 2021