On Jun 27 2017 by Julianne Opet

Supreme Court Allows U.S. Travel Ban to Take Effect, in part; Certain Foreign Nationals Required to Establish Bona Fide Relationship to Person or Entity in the U.S. to Gain Entry

UPDATE: 6/30/17

Additional guidance released in new Client Alert here, regarding Department of State and Department of Homeland Security’s implementation and interpretation of the Travel Ban and Supreme Court Decision.

The United States Supreme Court published a 16-page opinion yesterday in which it agreed to hear argument on the Travel Ban in October 2017.

In the meantime, it stayed (in part) the restraining orders put in place by lower courts that prevented the ban’s implementation until now. In other words, aspects of the Travel Ban will be allowed to go into effect between now and October but on a limited basis, and with far-reaching implications for foreign nationals from the six named countries. We urge any clients concerned about the Supreme Court’s decision to remain apprised of new guidance and to contact your Klasko attorney immediately if you anticipate travel in and out of the United States.

Practical Considerations

It is important to note three key points at the outset: first, the Supreme Court’s decision concerns the second of two executive orders issued by the President – specifically the order issued on March 6, 2017 (“EO-2”) that suspended the entry of nationals from the following six countries for 90 days: Iran, Libya, Somalia, Sudan, Syria, and Yemen. EO-2 excluded Iraq from the list of banned countries, although applications for visa and admission by Iraqi nationals are subject to more thorough review.  EO-2 also suspended decisions on applications for refugee status and travel of refugees under the United States Refugee Admissions Program (USRAP) for 120 days.  On June 14, the President issued a supplemental Order regarding the effective date of those 90 day and 120 bans, ordering that they go into effect 72 hours after any injunction was stayed or lifted. 

Second, EO-2 was much more limited in scope than the first executive order (“EO-1”).  Persons from the six countries holding valid visas as of June 29; green card holders from the six countries; and dual nationals of one of the six countries seeking to enter the United States on the passport of their other nationality, for example, were all exempt from the second travel ban.  These exemptions will apply during the temporary period, as noted below.

Third, the Departments of State and Homeland Security have not yet published guidance on implementation of the Supreme Court’s decision, which unfortunately raised more questions than answers. Even after guidance is released, questions and ambiguities are likely to remain that make application of the ban challenging.  It will also be difficult to predict how each consulate and port of entry will interpret the Court’s ruling. Individuals from the six designated countries are encouraged to speak with an attorney and prepare adequately for potential travel, even if it appears from the plain language of the Supreme Court decision that an exemption applies.

Who is Impacted, and Who is Not?

For refugees and individuals from the six named countries, the ban is effective almost immediately and will be enforced against any individuals who are outside the U.S.; do not currently have a valid visa; and do not qualify for a waiver or fall under the exemptions created by the Supreme Court. 

However, the following individuals who otherwise fall under the auspices of the ban may still be eligible for a visa and admission to the U.S.:

  1. Persons who can demonstrate a close familial relationship to a person in the United States.

Example: Persons who wish to enter the United States to live with or visit a family member.

  1. Persons who can establish a formal, documented relationship to an entity in the United States, where such relationship is formed in the ordinary course (ie. not for purposes of evading immigration laws).

Examples:

  • Students who have been admitted to universities in the U.S.
  • Workers who accepted an offer of employment from an American company
  • Lecturers invited to address an American audience
  1. Persons excepted under EO-2, including:
  • Any lawful permanent resident of the United States;
  • Any foreign national who is admitted to or paroled into the U.S. on or after the effective date of this order;
  • Any foreign national who has a document other than a visa, valid on the effective date of this order or issued on any date thereafter, that permits him or her to travel to the U.S. and seek entry or admission, such as an advance parole document;
  • Dual nationals of designated and non-designated countries, if such individual is traveling on a passport issued by a non-designated country;
  • Any foreign national traveling on a diplomatic or diplomatic-type visa, NATO visa, C-2 visa for travel to the UN, or G-1, G-2, G-3 or G-4 visa; and
  • Any foreign national who has been granted asylum; any refugee who is already admitted to the U.S.; or any individual who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture.
  1. Persons who can demonstrate that denial of entry would cause undue hardship; whose entry is in the national interest; and who do not pose a threat to national security.

EO-2 includes a non-exhaustive list of persons who may qualify for a waiver, allowing visa issuance during the 90 day ban based on undue hardship.  Some of the examples given include infants in need of urgent medical care; students returning to the U.S. to engage in a prior course of study; foreign nationals with significant business or professional obligations in the U.S.; and several others. 

How long will the Travel Ban Remain in Effect?

The ultimate fate of the Travel Ban remains undecided until the Supreme Court has an opportunity to take up the matter in the Fall Term.  Arguments are expected in October of 2017, with a decision not likely before December of 2017.  Meanwhile, the 90- and 120-day periods may be deemed to begin on the date the Supreme Court stayed part of the injunction (or yesterday, June 26, 2017), or 72 hours later, June 29, pursuant to a June 14 order from the Trump administration. Until further guidance is forthcoming, the above guidelines should be construed as effective immediately, and remain in full force until October with the caveat that the 90-day entry suspension process for the six named countries expires at the end of September, likely prior to oral arguments before the Supreme Court.

Theoretically, at the end of the 90 days, the suspension on travel will expire. However, it is also possible that the administration may determine by that time that it has sufficiently addressed alleged deficits in its vetting programs that render continuation of the ban unnecessary; or it may revise its list to remove some named countries or include others based on feedback it receives from those countries and the input of various departments and the intelligence community.

Absent more information, assume the above applies until further notice and contact your Klasko attorney with questions or concerns.  Additional updates will be provided as further guidance becomes available.