Update: Effect of U.S. Supreme Court Order on Second Executive Order / Travel Ban 2.0

Executive Order 13780 (EO-2), signed by President Trump on March 6, 2017, ordered the suspension of entry by citizens and nationals of six countries – Iran, Libya, Somalia, Sudan, Syria, and Yemen – for at least 90 days from its effective date of March 16, 2017. Litigation in U.S. federal courts temporarily prevented the ban from being carried out. The Trump Administration appealed these courts’ decisions and, on June 26, 2017, the Supreme Court of the United States (SCOTUS) decided to hear the Trump Administration’s appeals. Pending its full review and decision, SCOTUS partially reinstated EO-2.

The administration may now enforce the “travel ban” for nationals of the six countries who do not have a “credible claim of a bona fide relationship with a person or entity in the United States” and began doing so on June 29, 2017. According to a U.S. Department of Homeland Security (DHS) Q&A and U.S. Department of State FAQ, the new ban is expected to be implemented in the following ways:

  • New Visa Issuance: The revised ban prevents new visa issuances to citizens and nationals of the six affected countries unless they can meet the “credible claim” test. “A credible claim of a bona fide relationship with a person or entity in the United States” will be interpreted as follows:
    • Applicants seeking B (B-1 or B-2), 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 from the ban, or they may qualify for a waiver pursuant to the terms of EO-2.
    • A close familial relationship is defined as a parent (including parent-in-law), spouse, fiancé, child, adult son or daughter, son-in-law, daughter-in-law, sibling whether whole or half, and 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.
    • Qualified applicants in some nonimmigrant visa categories (such as H or L) are considered exempt from EO-2, 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. Examples of such a qualifying relationship:
      • An I visa applicant employed by foreign media that has a news office based in the United States;
      • Students from the six designated countries who have been admitted to U.S. educational institutions;
      • A worker who has accepted an offer of employment from a company in the United States; or
      • A lecturer invited to address an audience in the United States.
    • Qualified applicants in the immediate-relative and family-based immigrant visa categories are exempt from the order, since having a bona fide close familial relationship is inherent in the requirements for the visa.
    • Qualified employment-based immigrant visa applicants generally are exempt from EO-2, since they have a bona fide formal, documented relationship with a U.S. entity formed in the ordinary course. (However, certain self-petitioning visa applicants, such as employment-based first preference (EB-1) applicants with no job offer in the United States, and some applicants for “special immigrant” visas, may need to demonstrate that they have a bona fide relationship with an entity in the United States or otherwise qualify for a waiver.)
    • Diversity visa applicants will need to demonstrate a qualifying relationship, or qualify for a waiver, since a relationship with a person or entity in the United States is not required for such visas.
  • U.S. Lawful Permanent Residents (LPRs, a/k/a “green card” holders) with citizenship/nationality of a restricted country: The ban does not apply to LPRs, and so LPRs who are nationals of one of the six countries are not barred from entering. However, they may expect additional screening by U.S. Customs and Border Protection (CBP) and may therefore wish to avoid international travel.
  • U.S. nonimmigrant visa-holders with visa in passport of a restricted country: Will be allowed to travel if the visa is unexpired and valid for multiple entries. With the exception of visas that were physically cancelled, visas that were revoked under the January ban, which were reinstated due to subsequent litigation, are also expressly reinstated by EO-2.
  • Multiple-Entry Visas; Expiring Visas: Note that the DHS FAQ states that “any individual who had a valid visa either on January 27, 2017 (prior to 5:00 PM) or holds a valid visa on the effective date of the Executive Order is not barred from seeking entry.” However, not all visas are issued for multiple entries. Therefore, anyone from one of the six countries should not travel without seeking advice regarding their current visas.
  • Dual nationals (restricted country and non-restricted country not the United States) with valid visa in passport of the unrestricted country: The new ban is not applicable to dual nationals “traveling on” a passport issued by a non-designated country. Applicants for admission to the United States at ports of entry will be treated according to the travel document they present to CBP. Applicants for visas will be treated according to the passport that they present at the interview.
  • Holders of valid “Advance Parole” document: The ban does not affect parole into the United States on a valid, unexpired advance parole document.
  • Travelers subject to the ban, holding U.S. “Global Entry / Trusted Traveler” status: The Global Entry / Trusted Traveler status of nationals of the seven restricted countries was cancelled in the days immediately following the signing of the first Executive Order; reinstatement is unclear.
  • U.S. citizens, U.S. LPRs, nationals of non-restricted countries holding valid U.S. visas: While not explicitly covered by the ban, they may expect additional screening if they have travelled to or have current or past citizenship in a restricted country.
  • Citizens/nationals of the 38 “Visa Waiver Program” (VWP) countries: May visit the United States for business or pleasure for up to 90 days pursuant to ESTA electronic clearance (no need for visa from a U.S. Consulate abroad) unlessthey were present in any restricted country (currently Iraq, Iran, Libya, Somalia, Sudan, Syria, Yemen) at any time on or after March 1, 2011, in which case a physical visitor visa (B-1/B-2) will be required for visits to the United States. (This restriction, effective since 12/18/2015, is not part of the Executive Order; it stems from a statute enacted by Congress under the Obama Administration.)
  • Visa applicants and travelers subject to the ban – potential waivers on basis of U.S. “national interest”: The Department of State and CBP have waiver authority to issue a visa or to permit U.S. entry, on a case-by-case basis, if denying entry during the ban would cause undue hardship, would not pose a threat to national security, and would be in the national interest. It is not clear how liberally this waiver authority will be applied.
  • Nationals of a restricted country who are permanent residents of Canada: Permanent Residents (“Landed Immigrants”) of Canada who are citizens or nationals of one of the six countries are subject to the ban. Therefore, they would need a waiver to apply for a U.S. visa at a U.S. Consulate in Canada.
  • Individuals currently in the United States with valid status: The revised ban does not revoke or cancel the status of anyone currently in the United States. It applies only to visa issuance.
  • Travel and admission procedures: The Trump Administration’s Q&A indicates that individuals who are in transit to the United States on valid visas when the ban takes effect and arrive at a U.S. port of entry can still apply for admission to the United States on their valid, unexpired visa. As with any applicant for admission, they must otherwise meet all admissibility requirements.
  • USCIS benefits requests: As with the first Executive Order, it is expected that the EO-2 will not affect USCIS adjudication of applications and petitions filed for or on behalf of individuals in the United States, regardless of citizenship or nationality. However, this has not been confirmed by the Trump Administration.

Further updates will be posted here as more information becomes available.

© Jewell Stewart & Pratt PC 2017