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Supreme Court Partially Lifts Injunction on Travel Ban

Posted on Friday, July 7, 2017

On Monday,June 26, 2017, the Supreme Court issued its first ruling on Donald Trump's executive order, commonly referred to as the "Travel Ban." Unlike the lower federal courts, the Supreme Court has allowed the travel ban to go forward, although with very important exceptions. To the extent that the ban can be implemented, it went into effect on 8:00pm EST on June 29, 2017.

Recall that the main issues in this case were:

  1. The president's decision to ban all travelers from the following six countries: Iran, Libya, Somalia, Sudan, Yemen, and Syria for 90 days.
  2. The president's decision to ban all refugees for 120 days and limit the total number of refugees admitted in 2017 to 50,000.

Who Is Affected by the Executive Order and Supreme Court Decision?
First, it is important to note that lawful permanent residents (people with green cards) are not banned under the executive order, so this decision does not affect their ability to enter the country. Second, the executive order was not implemented until June 29, 2017, so people who already had visas at that time are not affected by the Supreme Court decision either.

For everyone else, the Supreme Court held that the travel ban can go forward, but only if someone does not have a "credible claim of a bona fide relationship with a person or entity in the United States." This means that officers can ban foreign nationals from any of the six named countries, as well as refugees, who cannot show such a bona fide relationship. Importantly, the administration has decided that if visa applicant establishes a bona fide relationship, all derivative applicants (i.e. spouse and minor children) will also be exempt from the travel ban.

Lastly, remember that the Executive Order allowed people banned by the order to apply for a waiver, which could be granted if denying entry would cause undue hardship, would not pose a threat to national security and would be in the national interest. Therefore, people who cannot establish a bona fide relationship may still be able to enter the United States.

What is a Bona Fide Relationship?
The Supreme Court decision did not give clear instructions about what a "bona fide relationship with a person or entity" is, which means the Trump administration has a lot of leeway to define it as narrowly or broadly as they see fit.

The Department of State and the Department of Homeland Security have issued guidance indicating that people with the following close family relationships would not be excluded by the travel ban:

  • Parent (including parent-in-law)
  • Spouse or fiancé(e)
  • Child (including adult children in children-in-law)
  • Sibling, whether whole or half, and including step siblings.

This does NOT extend to grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-law and sisters-in-law, and any other extended family members. This means, for example, that an applicant for a tourist visa can be admitted to the United States to visit a parent or siblings, but not to visit a grandparents, aunt or cousin.

Regarding relationships with an entity in the United States, the administration has indicated that the relationship must have been "formed in the ordinary course rather than for the purpose of evading the [Executive Order]." Examples of qualifying relationships to entities are:

  • Students admitted to U.S. educational institutions
  • A worker who has accepted of employment offer from a company in the United States
  • A lecturer invited to address an audience in the United States
  • A foreign media company with a news office in the United States

On the other hand, having a hotel reservation does not constitute a bona fide relationship with an entity in the United States.

Note that many applicants for green cards or non-immigrant visas by default have these relationships. For example, if a family member or employer petitioned for you to obtain a green card, or you obtained a work visa or student visa, you likely have already established a bona fide relationship. Unfortunately, one important category of applicants who may be affected is self-petitioners, such as a U-visa, VAWA or EB-1 self-petitioners of extraordinary ability. These applicants need not show any relationship to a person or entity to obtain their visa, so they would still need to show either that they do have a qualifying bona fide relationship or apply for a waiver. This would also apply to applicants for tourist or business visas.

Finally, please be aware that the administration can change this guidance at any time. It is very important that you stay up to date on any changes in how the executive order is being implemented.

What Do I Need to Know If I Want to Travel to the United States on a Nonimmigrant Visa?
First, please be aware that this executive order can come into play at all stages of the application process, including at the consulate and at the border. At all stages of the process, all foreign nationals affected by this decision should present all the proof that they can to show that they have a bona fide relationship to a family member or entity in the United States.

If you have applied for a visa or want to apply for a visa, you can do so. If you already have an interview scheduled at the consulate, that interview will not be canceled, and you should attend it. When you have your appointment at the consulate, the officer will first determine if you are eligible for a visa independent of the travel ban. If you are eligible for a visa, then you will be given the chance to show that you have a bona fide relationship that would allow you to enter despite the travel ban. If the officer does not believe you have a bona fide relationship, you would still be eligible to apply for a waiver, although we do not know exactly what the standard will be.

For people with family connections, documents could include birth or adoption certificates, and marriage licenses, as well as proof the family member resides in the United States. You should also have proof that you are visiting that particular person. For example, if you are entering the country in New York, but your relative lives in Chicago, you may want to show how you are visiting that family member (such as a connecting flight). For students or employees, you must be prepared to show proof of your enrollment in the school or the employment contract, proof that the school or job is based in the United States, and any other document you can think of to show the relationship. Remember that you need to prove that you did not enter into this relationship to get around the travel ban. Therefore, it is important to show that this relationship existed before the Supreme Court decision was issued. For example, if you are first issued a student visa after this decision goes into effect, you should show that you applied to the school beforehand.

All travelers affected by this order should also be prepared for long delays at the border or airport, especially in the immediate aftermath of this decision. We do not know the instructions officers will be given or exactly what questions travelers will be asked, but travelers should be prepared to answer detailed questions about their connections to the United States. Make sure to have all your documents in order at all time, including proof of when and how you obtained your visa as well as proof of the bona fide relationship.

Is This the Final Decision?
No. This decision is only about the preliminary injunction issued by the lower courts. The lower courts had not issued final decisions on this case; rather, they had decided that the travel ban could not go forward while the case was still pending. This means the Supreme Court will hear oral arguments on this case later this year and will then make a final decision.

As always, if you have questions about how this case could impact you, your family and friends, or your employees, do not hesitate to contact our office.

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