Updated: June 29, 2017
The Supreme Court of the United States (SCOTUS) will hear the Travel Ban case when its fall session begins in October 2017. In the meantime, the Court will allow the administration to implement parts of President Trump’s second Executive Order (EO-2), starting June 29, 2017 at 8:00pm EDT, which bans the entry of nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen from the United States for at least 90 days and suspends the admission of all refugees for 120 days.
According to the Department of State, no validly issued visas will be revoked based on the Executive Order and the ban will not apply to those already issued visas for entry into the United States even after their visas expire or they leave the United States.
Who is likely to be allowed in to the United States?
- Lawful Permanent Residents (LPR), Asylees, and Others Exempted from EO-2: LPRs, individuals who have been granted asylum, those already admitted as refugees, individuals traveling on advance parole, those granted withholding of removal and/or CAT, those with visas as of June 29, 2017, any applicant who was in the U.S. on June 26, 2017 are exempt and should be permitted to travel freely without having to demonstrate a bona fide relationship with a person or entity in the United States.
- Diplomats and Dual Nationals: Also exempt from the EO-2 travel ban are individuals traveling on diplomatic and related visas [NATO, C-2, G-1, G-2, G-3, or G-4] and dual nationals traveling on a passport issued by a non-designated country. These individuals should still be permitted to travel freely without having to demonstrate a bona fide relationship with a person or entity in the United States.
- Business Visas and Employment-Based Immigrant Visas (H, L, E, I, O, P, Q, R): The Court stated that a worker who has accepted an offer of employment from a U.S. company would have a bona fide relationship to a U.S. entity.
- Family-Related Visas and Family-Based Immigrant Visas (K, V, I): The Court’s order is clear that individuals who “wish to enter the United States to live with or visit a family member” have close familial relationships. A spouse and a mother-in-law were included by the Court as examples of relationships that would qualify. A fiancé would similarly qualify. It is unclear at this time if more distant relationships would qualify.
- Students and Trainees (F, M, J): The Court stated that students who have been admitted to a U.S. university would have such a relationship. Presumably, the same would apply for vocational students and J-1 exchange visitors who would have a relationship to a U.S. program sponsor.
- Visitor for Business (B-1): The Court stated that a lecturer invited to address a U.S. audience would have a bona fide relationship to a U.S. entity. Any relationship with a U.S. entity must be formal, documented and formed in the ordinary course and rather than for the purpose of evading the EO.
- Visitor for Pleasure (B-2): As noted above, the Court recognized that individuals who wish to “visit a family member,” such as a spouse, fiancé or mother-in-law, have close familial relationships. It is unclear whether more distant relatives would qualify.
Special note about Refugees
All refugees authorized to enter the United States have a relationship with a refugee resettlement agency which may constitute a “formal, documented [relationship] formed in the ordinary course [of business].”However, the Court did not specifically mention refugee resettlement agencies as a qualifying entity. Therefore, the government may take the position that refugees without family connections in the United States are not covered by the narrowed injunction.
Who may have difficulty entering the United States?
- Tourists who are nationals of the designated countries who are coming for other reasons than to visit family members and other individuals (e.g. those with no current - as of June 26, 2017- relationship with individuals or entities in the United States).
- Individuals with employment-based visas that do not require a petitioning employer (EB-1, National Interest Waiver) may not be able to demonstrate a relationship to a U.S. entity.
- It is also unclear at this time how individuals traveling to the United States for business conferences or other short-term, non-contractual business interactions will be treated.
The EO permits consular officers to grant waivers and authorize the issuance of a visa on a case-by-case basis when the applicant demonstrates to the officer’s satisfaction that the following three criteria are all met:
- Denying entry during the 90-day suspension would cause undue hardship;
- His or her entry would not pose a threat to national security; and
- His or her entry would be in the national interest.
If you are affected by the travel ban, we recommend that you seek the counsel of an immigration attorney who can help you in presenting evidence of a “formal, documented” relationship with a U.S. entity “formed in the ordinary course” of business, or help you demonstrate close ties to the U.S., or that you qualify for a waiver. Please contact us, we can help. Follow us on Instagram, Twitter, Facebook, LinkedIn and Tumblr, for up-to-date immigration news.
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