2017-06-26-- Impact of Supreme Court Decision on Travel and Refugee Ban

Jun 30, 2017 | Executive Orders

 

Impact of Supreme Court Decision on Travel and Refugee Ban

On June 26, 2017, the U.S. Supreme Court upheld portions of President Trump’s March 6, 2017 Executive Order which would ban from travel to the United States certain nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen and refugees from all countries.  Specifically, the Court ruled as follows:

  • Travel and Refugee Ban: The travel and refugee bans may not be enforced against foreign nationals who have a credible claim of bona fide relationship with a person or entity in the United States.  However, all foreign nationals without such a bona fide relationship are subject to the provisions of the Executive Order.  For those that do not qualify for the exemption, or waiver, the ban will be in force for 90 days against nationals of the six restricted countries.
  • Refugee Cap: A refugee with a credible claim of bona fide relationship with a U.S. person or entity may not be excluded, even if the 50,000 cap on refugees has been reached or exceeded.  For those that do not qualify for the exemption, the ban will be in force for 120 days against non-exempt refugees.

The March 6, 2017 Executive Order broadly included US lawful permanent residents, dual nationals, and holders of valid visas. The Court’s decision on June 26, 2017 to uphold certain portions of the Executive Order thus narrows the class of individuals who would be subject to travel restrictions.

The Court will take up the President’s March 6, 2017 Executive Order in full in its next term which begins on October 1, 2017.  In the meantime, the Court indicated the Administration may proceed with a planned worldwide review of the visa security policies of foreign countries.

IMPLEMENTATION OF EXECUTIVE ORDER:

On June 28, 2017, the DOS issued guidance to consulates and visa adjudicating posts on the implementation of the Executive Order.

90 Day Travel and Refugee Ban for Nationals of the Six Restricted Countries:

The DOS guidance indicates that the Executive Order’s 90 day suspension of entry will be implemented worldwide at 8:00pm (EST) on June 29, 2017.  The suspension of entry will NOT apply to individuals who:

(1) are inside the United States on June 29, 2017,

(2) have a valid visa on June 29, 2017, or

(3) had a valid visa at 8:00pm (EST) on June 29, 2017, even after their visas expire or they leave the United States.

The DOS also indicates that no visas will be revoked based on the Executive Order even if issued during the period in which the travel ban was enjoined by the court order or during the 72 hour implementation period.

New applications will be reviewed on a case-by-case basis.

Direction and guidance to resume normal processing of visas following the 90 day suspension will be issued separately by DOS.

 

Who is Exempt from the Travel Restrictions?

The DOS guidance indicates that the Executive Order’s travel restriction does NOT apply to any applicant who has a credible claim of a bona fide relationship with a person or entity in the United States.

  • Any relationship with a “person” must be a close familial relationship which is defined as: parent (including parent-in-law), spouse, child, adult son or daughter, son-in-law, daughter-in-law, sibling whether whole or half.  This includes step relationships.
    • “Close family” does NOT include grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-law, sisters-in-law, and any other “extended” family members.
  • Any relationship with an “entity” must be formal, documented, and formed in the ordinary course (ie: not formed for purposes of evading the Executive Order).  The DOS provides the following examples:
    • An eligible I visa applicant employed by foreign media that has a news office based in the United States would be covered by this exemption.
    • Students from designated countries who have been admitted to U.S. educational institutions have a required relationship with an entity in the United States.
    • Similarly, a worker who accepted an offer of employment from a company in the United States or a lecturer invited to address an audience in the United States would be exempt.
  • In contrast, the exemption would not apply to an applicant who enters into a relationship simply to avoid the E.O.: for example, a nonprofit group devoted to immigration issues may not contact foreign nationals from the designated countries, add them to client lists, and then secure their entry by claiming injury from their inclusion in the E.O. Also, a hotel reservation, whether or not paid, would not constitute a bona fide relationship with an entity in the United States.

The Executive Order’s travel restriction also does NOT apply to:

  • Any applicant who was in the United States on June 26, 2017.
  • Any applicant who had a valid visa at 5:00pm (EST) on January 27. 2017 (the date the original Executive Order was signed).
  • Any applicant who had a valid visa on June 29, 2017.
  • Any lawful permanent resident of the United States.
  • Any applicant who is admitted to or paroled into the United States on or after June 26, 2017.
  • Any applicant who has a document other than a visa, valid on June 29, 2017, or issued any date thereafter, that permits him or her to travel to the United States and seek entry or admission (ie: Advance Parole document).
  • Any dual national of a country designated under the order when travelling on a passport issued by a non-designated country.
  • Any applicant travelling on an A1, A2, NATO-1 through NATO-6 visa, C2 for travel to the United Nations, C3, G1, G2, G3, or G4 visa or a diplomatic-type visa of any classification.
  • Any applicant who has been granted asylum; any refugee who has already been admitted to the United States, or any individual who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture.
  • Any V92 or V93 applicant.

Discretionary Waiver Process:   As mentioned above, new applications will be reviewed on a case-by-case basis. The DOS has outlined a waiver process for those impacted by the 90 day travel restriction which would be reviewed on a case-by-case basis and would factor in:

(1) whether denying entry during the 90 day suspension would cause undue hardship;

(2) whether the applicant’s entry would pose a threat to national security and

(3) whether the applicant’s entry would be in the national interest.

DOS provides the following examples of where a waiver may be considered.  However, the nature of the criteria and the lack of clear standards and process may result in these waivers being difficult to obtain:

  • Applicant has previous significant contacts with the United States but is outside the United States on the effective date of the Executive Order for work, study, or other lawful activity.
  • Applicant seeks to enter the United States for significant business or professional obligations and the denial of entry during the suspension period would impair those obligations.
  • Applicant is an infant, young child or adoptee, an individual needing urgent medical care, or someone whose entry is otherwise justified by special circumstances.
  • Applicant is traveling for purposes related to an international organization designated under the International Organizations Immunities Act, traveling for purposes of conducting meetings or business with the United States government, or traveling to conduct business on behalf of an international organization not designated under the IOIA
  • Applicant is a permanent resident of Canada who applies for a visa at a location within Canada.