June 29, 2017
On Monday, the Supreme Court issued an order partially lifting the various injunctions placed on President Trump’s travel ban. This means that as of 8:00 PM Eastern time today, certain foreign nationals may be denied entry to the United States. While many questions remain unanswered, the Department of Homeland Security has released an FAQ on the changes, which provides some clarity.
Remind me: who was the Trump Administration trying to ban from entering the U.S.?
The second version of the travel ban (the first having been decisively struck down by the courts, and subsequently retracted by the administration) proposed a temporary 120-day ban on all new refugee entries, as well as a temporary 90-day ban for nationals of six majority-Muslim countries (Libya, Iran, Somalia, Sudan, Syria and Yemen). However, there were a number of exceptions, including:
Anyone falling into any of the above categories is not affected by the travel ban, even if they are from Libya, Iran, Somalia, Sudan, Syria, or Yemen. Nothing about the court’s decision changes that.
But didn’t the courts already stop Trump’s second travel ban?
Yes, but only temporarily. Multiple federal appeals courts put an injunction on the executive order that President Trump signed, and those injunctions prevented the ban from taking effect. However, these courts did not make a final determination that the ban was unconstitutional; they just prevented the government from implementing the ban until a final decision could be made on the order’s constitutionality. Since those injunctions were put in place, people have been able to travel to the U.S. as if the executive order had never been issued.
Did the Supreme Court make a final determination on the constitutionality of the ban?
No; but they did indicate that they would take up the full case in October, assuming that the government still wishes to implement the full ban at that time.
So what did the Supreme Court do?
They partially lifted the injunctions on the ban, so that a narrower version of the ban can be implemented between now and October (even though the constitutionality of the ban has not been ultimately determined). This means that some people will be banned from entering the U.S., starting as soon as 8:00 PM today.
Who can be denied entry under the court’s order?
Any foreign national who would have been subject to the travel ban and who does not have “a credible claim of a bona fide relationship with a person or entity in the United States” may be subject to the ban going forward. Conversely, anyone with such a relationship should be allowed to enter the U.S. while the court case proceeds, even if they are a refugee, or from one of the six affected countries.
What constitutes a bona fide relationship to a person in the United States?
The court stated that “for individuals, a close family relationship is required,” and while the court provided only two examples of such a relationship (a spouse and a mother-in-law), the Trump Administration has further defined which familial relationships qualify. According to a diplomatic cable issued by the U.S. Department of State, the following are qualifying close family relationships:
While the following are not qualifying close family relationships:
The court specifically noted that a foreign national with a qualifying relationship should be allowed to enter whether they are seeking to live with their family member on an immigrant visa, or just seeking to visit them on a B-2 tourist visa (assuming the relevant visas were secured through normal procedures). However, how and when in the process of applying for a visa (or travelling to the U.S.) one will be asked to prove that relationship is currently unclear, pending further guidance from the Department of Homeland Security and Department of State.
What constitutes a bona fide relationship to an entity in the United States?
The court stated that, for entities, “the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading [the travel ban].” The court provided three examples of such relationship, summarized by AILA as including “students who have been admitted to a U.S. university, a worker who has accepted an offer of employment from a U.S. company, or a lecturer invited to address a U.S. audience.”
It should therefore be assumed that anyone seeking to enter the U.S. on a business visa (H, L, E, I, O, P, Q, and R visas) or a student/trainee visa (F, M, or J visas) would be permitted entry. Someone seeking to enter the U.S. on a B-1 visitor visa should also be permitted entry, providing that they have a documented relationship to a U.S. entity.
Most employment-based immigrant visas are also dependent on a formal relationship to a U.S. employer, and so should also qualify a foreign national for entry to the U.S. However, according to AILA, “what is not clear is whether individuals with employment-based visas that do not require a petitioning employer (EB-1, National Interest Waiver) would be able to demonstrate a relationship to a U.S. entity.”
How are Refugees affected?
Unfortunately, this is not currently clear. As explained by AILA:
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.
Late on Thursday, word came that the government would not consider refugee resettlement agencies to be qualifying U.S. entities; however, they have since retracted that guidance. It therefore remains unclear how the government will treat refugees seeking entry who had a relationship with a resettlement agency that is “formal, documented, and formed in the ordinary course.”
Summary: Who is subject to the ban?
If you are from Libya, Iran, Somalia, Sudan, Syria, or Yemen, are not a U.S. permanent resident, diplomat, or dual national, do not have a valid U.S. visa, and do not have a bona fide relationship with a U.S. person or entity, then you would be subject to the temporary travel ban. If you are a refugee (or are applying for refugee status), do not have a qualifying relationship with a U.S. person or entity, and have not previously been admitted to the U.S. in refugee status, then you would also be subject to the temporary travel ban. As of now, it is not clear whether a relationship with a refugee resettlement agency would qualify a refugee for entry.
If you have any further questions, please contact our office at 215-925-0705 to schedule a consultation with one of our attorneys.
Update #1: Edited on 6/30/2017 to reflect the Administration’s decision to include fiancés on the list of qualifying relationships (a reversal of their initial decision).
Update #2: Edited on 6/30/2017 to update the section of the treatment of refugee resettlement agencies.
Update #3: Edited to include a link to the DHS FAQ