In 2017, the Donald Trump Administration announced Presidential Proclamation 9645 (PP 9645) which was designed to “enhance vetting capabilities and processes for detecting attempted into the United States by terrorists or other public safety-threats.” The Trump administration utilized INA § 212(f) extremely broadly to deny visas, both nonimmigrant visas and immigrant visas, at a significantly high rate. The nationalities of those impacted PP 9645 include nationals of Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen. While there were multiple lawsuits involving PP 9645, recently a lawsuit filed in California was settled that provides a path forward for those impacted by PP 9645 to reapply for visas without paying an additional visa fee. If you were impacted by this and may be a part of the class, it is important to speak to an immigration lawyer quickly to figure out your options as this settlement has expirations.

Background of INA § 212(f) and PP 9645

INA § 212(f) has its roots in World War One  during which Congress passed a law which authorized the President to utilize the statute when the US is at war to restrict or prohibit it the entry of people to the United States based on public safety requirements. The current version of INA § 212(f) has been expanded to authorize the President to suspend entry of aliens or classes of aliens if such entry would be detrimental to the interest of the United States. This power is broad and allows the President to set restrictions on the entry of foreigners by issuing proclamations, effectively giving the executive branch significant control over immigration matters related to national security and foreign policy.

Proclamation 9645, issued by President Donald Trump on September 24, 2017, was an executive order that set travel restrictions on nationals from several countries, citing national security concerns. The proclamation followed an earlier executive order (Executive Order 13780) and was part of a broader effort to improve the vetting process for individuals entering the United States. PP 9645 imposed varying levels of entry restrictions on nationals from eight countries: Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen, and Somalia. The restrictions ranged from complete bans on entry to more targeted limitations, such as suspending the issuance of certain types of visas. While PP 9645 was extremely controversial and faced legal challenges, it was ultimately upheld by the U.S. Supreme Court in the 2018 case Trump v. Hawaii, affirming the President’s authority to impose such travel restrictions under INA 212(f).

Trump v. Hawaii and Proclamation 9645: In the 2018 case Trump v. Hawaii, the U.S. Supreme Court upheld Proclamation 9645, issued by President Trump, which imposed travel restrictions on nationals from several countries, primarily Muslim-majority nations, citing national security concerns. The Court ruled that the President acted within the scope of INA 212(f) and that the proclamation was a lawful exercise of executive authority. This decision confirmed the President’s broad discretion under INA 212(f) and highlighted the significant impact of executive orders on immigration policy.

Farangis Emani v. Kirstjen Nielsen and Subsequent Settlement

In the case of Farangis Emani et al v. Kirstjen Nielsen et al (18-cv-1587), the plaintiffs challenged the Trump administration’s implementation of Presidential Proclamation 9645, which restricted entry to the U.S. for nationals from several predominantly Muslim countries. The plaintiffs argued that the administration’s handling of waiver provisions under the proclamation violated the Immigration and Nationality Act (INA) and the Administrative Procedure Act (APA). Specifically, they claimed the government failed to provide due process and proper notice-and-comment rulemaking, leading to a waiver process lacking transparency and fairness. The court found that the plaintiffs plausibly alleged these violations, allowing their claims to proceed under the APA and the Accardi doctrine, which requires agencies to follow their own rules and regulations.

On May 14, 2024, both parties entered in a stipulated injunction that would ultimately settle the lawsuit. The settlement in the case involves a stipulation for an injunction filed in the United States District Court for the Northern District of California. The case concerns a class of visa applicants who are nationals of Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen. These individuals were denied visas under Proclamation 9645 between December 8, 2017, and January 20, 2021, did not receive a waiver, and have not subsequently obtained a visa. The following parameters will be used to identify Class Members:

• Individuals who made a nonimmigrant visa application or immigrant visa application, and were refused under INA § 212(f) pursuant to PP 9645 between December 8, 2017 and January 20, 2021;
• No waiver of that visa refusal was issued;
• The individual was not ultimately issued a visa on the same visa application after Proclamation 9645 was revoked;
• The visa sought and refused under PP 9645 was NOT a diversity visa application; and
• Since the rescission of PP 9645 on January 20,2021, the applicant has not made another nonimmigrant or immigrant visa application

The settlement stipulates that the Department of State must notify class members within 30 days and provide final instructions within 80 days. Class members are entitled to submit new visa applications and receive a one-time, non-transferable fee credit. The Department is required to accept new nonimmigrant and immigrant visa applications from class members for 365 days, provide fee credits, and schedule consular appointments. Procedures for class membership verification, dispute resolution, and interview scheduling are detailed to ensure compliance and facilitate the application process.

Conclusion

The settlement in this case offers a crucial opportunity for those affected by Presidential Proclamation 9645 to reapply for visas without incurring additional fees. This path to relief is a significant step towards justice for many individuals who faced undue hardships due to the travel ban. However, it is imperative for those impacted to act swiftly. The window for reapplying is limited, and the deadlines set forth in the settlement are strict.

If you or someone you know is part of this class, it is essential to understand the specific eligibility criteria and the detailed procedures involved. Given the complexities of immigration law and the importance of timely action, consulting with a qualified immigration lawyer is strongly recommended. An experienced attorney can provide personalized guidance, help navigate the application process, and ensure that all necessary steps are taken to benefit from this settlement. Don’t delay in seeking the professional assistance needed to secure your future in the United States.

Reddy Neumann Brown PC located in Houston, Texas, has been serving the business community for over 27 years and is Houston’s largest immigration law firm focused solely on U.S. Employment-based immigration. We work with employers, employees and investors helping them navigate the immigration process quickly and cost-effectively.

By : Steven Brown

Steven Brown is a Partner at Reddy Neumann Brown PC where he works in the Non-immigrant visa department and leads the Litigation Team. His practice covers all phases of the non-immigration visa process including filing H-1B, L-1, E-3, H-4, and H-4 EAD petitions. In the last two years, Steven has successfully handled over 1,000 non-immigrant visa petitions including filing petitions, responding to any necessary Requests for Evidence, and drafting motions and appeals. He has also become a key resource for F-1 students that seek guidance on properly complying with the F-1 visa regulations and any OPT or CPT issues they may have. Additionally, Steven holds a weekly conference call for companies that are part of one of the largest organizations for IT Services companies in America.