U.S. ALERT – Supreme Court Partially Lifts Trump Travel Ban Preliminary Injunctions

On June 26, 2017, the Supreme Court partially lifted preliminary injunctions that barred the Department of State from enforcing section 2 of Executive Order 13780, which suspended for 90 days the entry into the United States of, and the issuance of visas to, nationals of six designated countries—Iran, Libya, Somalia, Sudan, Syria, and Yemen—and from enforcing section 6, which suspends refugee admissions from all countries for 120 days. The Supreme Court plans to hear arguments in the related cases in October brought against the Trump administration in the U.S. Courts of Appeals for the Ninth and Fourth Circuits.

The Department stated in a briefing that the travel ban for refugees will start July 6. Refugees scheduled to arrive before then are exempt from the temporary ban. The Department sent a cable to all diplomatic and consular posts implementing Executive Order 13780, in light of the Supreme Court’s ruling on President Trump’s travel ban, as of 8 p.m. ET on June 29, 2017. The cable notes that the Supreme Court’s ruling allows the travel ban to be enforced only against foreign nationals who lack a “bona fide relationship with a person or entity in the United States.” The cable states that applicants who are nationals of the affected countries who are determined to be otherwise eligible for visas and to have a credible claim of a bona fide relationship with a person or entity in the United States are exempt from the suspension of entry in the United States under section 2(c) of the order. Applicants who are nationals of the affected countries and who are determined to be otherwise eligible for visas, but who are determined not to have a qualifying relationship, “must be eligible for an exemption or waiver as described in section 3 of the [order] in order to be issued a visa,” the cable states.

The cable notes that any such relationship with a “person” must be a close familial relationship,” as defined in the cable. Any relationship with an entity “must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading the E.O.” “Close family” is defined as a 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 and sisters-in-law, and any other “extended” family members, the cable states.

The cable notes the following examples of who may and may not be included in the exemption from the travel ban:

[A]n eligible I visa applicant employed by foreign media that has a news office based in the United States would be covered by this exemption [from the travel ban]. 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 cable states that the travel ban does not apply to certain categories of individuals, such as those who were inside the United States as of June 29, 2017, who have a valid visa as of June 29, 2017, or who had a valid visa at 8 p.m. ET January 29, 2017, even after their visas expire or they leave the United States. The cable also notes:

No visas will be revoked based on the E.O. [Executive Order], even if issued during the period in which Section 2(c) was enjoined by court order or during the 72-hour implementation period. New applicants will be reviewed on a case-by-case basis, with consular officers taking into account the scope and exemption provisions in the E.O. and the applicant’s qualification for a discretionary waiver. Direction and guidance to resume normal processing of visas following the 90-day suspension will be sent [via separate cable].

In a related statement issued publicly on June 29, 2017, the Department noted:

The Supreme Court’s order specified that the suspension of entry in section 2(c) of Executive Order 13780 may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States. Applicants seeking B, C-1, C-3, D, or I visas will need to demonstrate that they have the required bona fide relationship in order to be exempt, or they may qualify for a waiver pursuant to the terms of the E.O. Qualified applicants in other nonimmigrant visa categories are considered exempt from the E.O., as a bona fide relationship to a person or entity in the United States is inherent in the requirements for the visa classification, unless the relationship was established for the purpose of evading the order.

The statement says that an individual who wishes to apply for an immigrant visa “should apply for a visa and disclose during the visa interview any information that might demonstrate that he or she is exempt from section 2(c) of the Executive Order.” A consular officer “will carefully review each case to determine whether the applicant is affected by the E.O. and, if so, whether the case qualifies for a waiver,” the statement says.

The statement also includes the following information with respect to students and short-term employees:

I’m a student or short-term employee that was temporarily outside of the United States when the Executive Order went into effect. Can I return to school/work?

If you have a valid, unexpired visa, the Executive Order does not apply to your return travel.

If you do not have a valid, unexpired visa, the Supreme Court’s decision specified that section 2(c) of the Executive Order may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States. One example cited in the Supreme Court’s decision was a student from a designated country who had been admitted to U.S. university, thereby demonstrating a credible claim of a bona fide relationship with an entity in the United States.

The Supreme Court’s decision is at https://www.supremecourt.gov/opinions/16pdf/16-1436_l6hc.pdf. The Department of State’s public statement is at https://travel.state.gov/content/travel/en/news/important-announcement.html. A related “background briefing” is at https://www.state.gov/r/pa/prs/ps/2017/06/272281.htm. The full text of the cable is at http://live.reuters.com/Event/Live_US_Politics/989297085. The Executive Order is at https://www.whitehouse.gov/the-press-office/2017/03/06/executive-order-protecting-nation-foreign-terrorist-entry-united-states. A Department of Homeland Security FAQ is at https://www.dhs.gov/news/2017/06/29/frequently-asked-questions-protecting-nation-foreign-terrorist-entry-united-states. An advisory by NAFSA: Association of International Educators is at https://www.nafsa.org/Content.aspx?id=57494.