U.S. Travel Ban Implementation and Guidance
Additional Information released re Implementation of the Travel Ban
On June 27, we issued a client alert regarding the latest Supreme Court decision, Trump v. International Refugee Assistance Project, and advised that parts of the Travel Ban were scheduled to go into effect imminently, with further guidance from the Department of State (DOS) and Department of Homeland Security (DHS) forthcoming. On, June 29, at 8:00 p.m. EDT the Travel Ban became effective, accompanied by the release of further guidance on its implementation. We provide some of the relevant updates here, as excerpted from a press release with “Frequently Asked Questions” that appeared on the Department of Homeland Security website, and an internal Department of State cable made available to the public by various media outlets. Both sources add a bit more clarity and insight into how the Travel Ban will be applied by those two key departments. Field guidance from Customs and Border Protection (CBP) is forthcoming, but the anecdotal evidence is that visas for nationals of the affected countries are being honored by CBP, and the Travel Ban’s effects are primarily being felt at the consulates.
Critical Dates and Times for Affected Foreign Nationals
We previously advised that certain portions of the Travel Ban were likely to take effect on June 29 based on a June 14 Presidential Memorandum providing for a 72-hour implementation window following any Supreme Court decision. A Department of Homeland Security press release published on Thursday, June 29 confirmed that travel restriction provisions were officially in effect on June 29 at 8 P.M. EDT.
This implementation date is important because it represents the date by which foreign nationals outside the U.S. must have been issued a valid visa (or other valid travel document, per DOS) in order to be exempt from the Ban (assuming no other exception applies).
Per DHS, the ban will apply to all foreign nationals from the six designated countries (and their derivatives) who:
- Are outside the United States as of June 26, 2017
- Did not have a valid visa at 5 PM EST on January 27 and
- Did not have a valid visa as of 8 PM EDT on June 29
DHS also clarified that previously issued visas will not be revoked as a result of the Ban, including those visas issued during the 72-hour implementation window following the Supreme Court’s decision but prior to the Ban’s implementation. Finally, persons holding a valid visa on June 29, whether single or multiple-entry, are eligible to re-apply for visas even after their current visa expires.
In addition to the specific carve-outs provided by E0-2 and the Supreme Court decision, DHS clarified that any individual seeking admission as a refugee who was formally scheduled for transit by DOS before 8 PM EDT on June 29, 2017 is exempt from the ban, per DHS. And after 8 PM on that day, any first-time refugees who are issued travel documents are deemed to be cleared for travel and are likewise exempt.
Finally, DHS explicitly stated that persons present in the United States (specifically those who were admitted to or paroled in) as of June 26, 2017 are exempt and will also be eligible to seek visas in the future, even while the Ban is ongoing.
Further Defining “Close Family Relationship”
One of the key answers that came out of the DHS Frequently Asked Questions page is how the agency defines a “close family relationship.” The Supreme Court decision exempted from the Ban those foreign nationals who could demonstrate a credible, close family relationship to an individual in the U.S., but did not offer any insight into how that term should be interpreted. DHS offered a closed group of qualifying family members in its press release, and that group is a bit broader than what constitutes an “immediate relative” in standard immigration parlance, but is also much narrower than what most persons intuitively understand to be a close family relationship.
DHS will recognize all of the following relationships as “close family relationships” for purposes of the exception:
- Adult sons or daughters
- Sons- and Daughters-in law
- Siblings (including half siblings)
- Step relationships of the above
DHS went further to state, explicitly, that the following relationships are not qualifying:
- Aunts and uncles
- Nieces and nephews
- Brothers- and sisters-in-law
- Any other “extended” family members not listed above
On one hand, providing an exhaustive list of qualifying family relationships is helpful to otherwise banned foreign nationals who can demonstrate eligibility for an exception through family ties alone. Civil documents like birth and marriage certificates will presumably be enough to show that a close relationship exists without having to examine the bona fides of that relationship on a case by case basis. Of course, the converse of that is persons who are in fact close to their grandparents or brothers- and sisters-in-law in the U.S. will not be able to overcome the Travel Ban by documenting a close and legitimate tie to those individuals. The State of Hawaii has challenged these interpretations in court, but no decision has been issued.
Department of State Cable Provides Glimpse into Visa Issuance
during the Term of the Travel Ban
The DOS cable, which offers remarkable insight into the Ban’s implementation but should not be construed as the agency’s official public guidance, states that persons seeking a nonimmigrant visa other than a B, C-1, D, I, or K will be exempt from the EO by virtue of their visa classification, which inherently establishes the requisite relationship to a U.S. entity. A similar approach will be taken with family-based visas where the qualifying relationship is inherent in the petition. This clarification signals DOS’s sensibleness in applying the exemption created by the Supreme Court, and places no further evidentiary requirements on applicants to qualify for the exemption. An applicant for an L-1A visa, for example, is deemed to have established the requisite relationship to a U.S. entity by virtue of the fact that an employer filed a petition on the foreign national’s behalf.
Likewise, employment-based immigrant visa applicants from one of the six countries will in most cases be able to rely on the visa classification itself, in tandem with a job offer, to establish a qualifying relationship to a U.S. entity. The DOS cable is careful to exclude self-petitioners lacking job offers from such automatic exemptions. For example, the EB-1 visa petition for persons of extraordinary ability permits individuals to self-petition, with or without a job offer from a U.S. company. These individuals will not enjoy the same treatment as their counterparts in other employment-based visa categories where U.S. employers are involved in the petitioning process. Presumably, such EB-1 visa applicants will be afforded an opportunity to evidence the requisite relationship to a U.S. entity by other means, and their eligibility for a visa and admission determined on a case-by-case basis.
The cable and other available resources including a briefing with senior administration officials further indicated the following:
- Diversity Visa applicants from one of the six designated countries, including those scheduled for an interview before the Ban went into effect, must qualify for an exemption or waiver or will otherwise be refused a visa;
- High-level government officials traveling on official business who do not qualify for an A or G visa (and are therefore not explicitly eligible for a waiver under EO-2) will likely be able to satisfy the “in the national interest” and “undue hardship” requirements by virtue of their title and qualify for a waiver, barring anything specific to their situation that gives rise to concern;
- Refugees who are approved and whose travel is already booked through July 6, 2017 are not covered by the ban.
Lastly, the cable offered insight into Department of State’s procedures if and when encountered by foreign nationals affected by the Ban. Moving forward, visa interviews will still be scheduled for persons from the six designated countries, but applications will be adjudicated as follows:
- First, consular officers will determine if the national is eligible for a visa in the ordinary course before reaching the exemptions and waivers of under EO-2.
- If the foreign national qualifies for a visa but for the Travel Ban, officers will then determine if the national meets any of the exemptions or qualifies for a waiver, and deny or issue visas accordingly.
In a briefing with senior administration officials including representatives from the White House and Departments of State, Homeland Security, and Justice, it was indicated that Supreme Court arguments regarding the executive order will likely take place after the week of October 1, the beginning of the next Supreme Court term.