The Department of State recently released guidance on President Trump’s executive order 13780, “Protecting the Nation From Foreign Terrorist Entry Into the United States,” frequently referred to as the “travel ban.” The Department’s guidance was issued following the U.S. Supreme Court’s June 26, 2017, ruling partially granting the government’s request to stay lower court injunctions against the travel ban.
The guidance states that implementation of the executive order, in compliance with the Supreme Court’s decision, began June 29, 2017. The Department said it does not plan to cancel previously scheduled visa application appointments. For nationals of the six designated countries—Libya, Iran, Somalia, Sudan, Syria, and Yemen—a consular officer will make a determination in the course of the interview whether an applicant otherwise eligible for a visa is exempt from the executive order or, if not, is eligible for a waiver and may be issued a visa. Consular officers may issue visas to nationals of the six designated countries on a case-by-case basis, the guidance states, if they determine that issuance is in the national interest, the applicant poses no national security threat to the United States, and denial of the visa would cause undue hardship.
The guidance reiterates that the executive order provides specifically that no visas issued before its effective date will be revoked pursuant to the order, and that the order does not apply to nationals of affected countries who had valid visas on June 29, 2017. The guidance also notes:
The E.O. further instructs that any individual whose visa was marked revoked or cancelled solely as a result of the original E.O. issued on January 27, 2017 (E.O. 13769) will be entitled to a travel document permitting travel to the United States, so that the individual may seek entry. Any individual in this situation who seeks to travel to the United States should contact the closest U.S. embassy or consulate to request a travel document.
The guidance notes that the Supreme Court’s order specified that the travel ban 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. The guidance states that applicants seeking B, C-1, C-3, D, or I visas “will need to make a credible claim to a consular officer at their visa interview that they have a bona fide close familial relationship with a person in the United States or of a bona fide, formal, documented relationship with an entity in the United States that was formed in the ordinary course, rather than for the purpose of evading the E.O., for the visa applicant to be exempt from the E.O. based on the Supreme Court order.” Alternatively, the Department noted, some applicants may qualify for an exemption, and others may qualify for a waiver. Qualified applicants in nonimmigrant visa categories not listed above “are considered exempt from the E.O., because a credible claim of a bona fide relationship with a person or entity in the United States is inherent in the requirements for the visa classification,” the guidance states.
Qualified applicants in the immediate-relative and family-based immigrant visa categories are also exempt from the executive order’s travel ban under the Supreme Court’s order, the guidance states, because having a credible claim of a bona fide close familial relationship is inherent in the requirements for the visa. Likewise, qualified employment-based immigrant visa applicants generally are exempt “because they have a credible claim of a bona fide, formal, documented relationship with an entity in the United States formed in the ordinary course.” Unlike other employment-based immigrant visa applicants, certain self-petitioning employment-based first preference applicants with no job offer in the United States and special immigrant visas under INA section 101(a)(27) may be subject to the travel ban unless they have a credible claim of a bona fide close familial relationship with a person in the United States or of a bona fide, formal, documented relationship with an entity in the United States that was formed in the ordinary course, rather than for the purpose of evading the executive order, the guidance states. Applicants not exempted based on the Supreme Court’s order still may qualify for an exemption or a waiver, the guidance says. Likewise, diversity visa applicants from the affected countries “will need a credible claim of a bona fide close familial relationship with a person in the United States or of a bona fide, formal, documented relationship with an entity in the United States that was formed in the ordinary course, to be exempted under the provisions of the E.O., or qualify for a waiver, before they can be issued a visa during the suspension,” because a relationship with a person or entity in the United States is not required for such visas.
The guidance notes that if a principal visa applicant qualifies for an exemption or a waiver under the executive order, a qualified derivative is also exempt. The order does not restrict the travel of dual nationals if they are traveling on the passport of an unrestricted country and, if needed, hold a valid U.S. visa, the notice states. This applies even if they hold dual nationality from one of the six restricted countries. Also, U.S. lawful permanent residents are not affected by the executive order.
Meanwhile, the U.S. Court of Appeals for the Ninth Circuit denied Hawaii’s appeal of a U.S. District Court decision denying an emergency motion filed by Hawaii’s Attorney General Douglas Chin asking the court to block portions of the travel ban and for clarification of “bona fide relationship” with respect to qualifying relationships under the travel ban.
However, on July 13, 2017, a federal judge in Hawaii ruled that the travel ban cannot apply to grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States. The Trump administration filed a motion with the Supreme Court on July 14, 2017, asking for clarification and a stay of the Hawaii order. “The Supreme Court has had to correct this lower court once, and we will now reluctantly return directly to the Supreme Court to again vindicate the rule of law and the Executive Branch’s duty to protect the nation,” Attorney General Jeff Sessions said.
The Department’s guidance, which includes frequently asked questions, is at https://travel.state.gov/content/travel/en/news/important-announcement.html. Executive order 13780 is at https://www.whitehouse.gov/the-press-office/2017/03/06/executive-order-protecting-nation-foreign-terrorist-entry-united-states. Hawaii’s emergency motion is at http://www.politico.com/f/?id=0000015c-f62c-d1e3-a97d-ff7cb9c30000.