July 19, 2017
By Mills Fleming, published in Business in Savannah on July 19, 2017
Much has been said about the implementation (and confusion) of Executive Order 13780 (EO), which temporarily bans certain individuals from six countries—Iran, Libya, Somalia, Sudan, Syria, and Yemen—from entering the United States.
President Trump signed the EO on March 6 and revoked the previous “travel ban” EO signed on January 27. The March 6 EO was immediately challenged in court and enjoined from being enforced.
On June 26, the U.S. Supreme Court issued a limited ruling and allowed parts of the EO to take effect while imposing strict limits on other provisions. When the Court reconvenes next October, it will examine the broader issue of balancing the president’s power to set national security priorities against the need to protect individuals from discrimination based on religion or national origin.
Following the Court’s decision, the Department of State (DOS) and the Department of Homeland Security (DHS) quickly published enforcement guidelines on their respective websites.
Given the scope and breadth of these changes and the speed with which they are being implemented, we have prepared a brief summary of what the EO says, how the Court’s ruling impacted it, and how the DOS and DHS are enforcing it.
What the EO says
- The EO directs the Secretary of State to report his findings to the President within 20 days of the order’s “effective date,” after which time those nations identified as deficient will have 50 days to alter their practices.
- It directs entry of nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen be “suspended for 90 days from the effective date” of the EO and explains that this pause is necessary to ensure that dangerous individuals do not enter the United States while the Executive is working to establish “adequate standards . . . to prevent infiltration by foreign terrorists.” A separate section provides for case-by-case waivers of the entry bar.
- It suspends “decisions on applications for refugee status” and “travel of refugees into the United States under the United States Refugee Admissions Program (USRAP)” for 120 days following the EO’s effective date. During that period, the Secretary of State is instructed to review the adequacy of USRAP’s application and adjudication procedures and implement necessary additional procedures “to ensure that individuals seeking admission as refugees do not pose a threat” to national security.
- Citing the President’s determination that “the entry of more than 50,000 refugees in fiscal year 2017 would be detrimental to the interests of the United States,” the EO “suspend[s] any entries in excess of that number” for this fiscal year.
The U.S. Supreme Court’s decision on June 26
When President Trump signed his first “travel ban” EO last January, several federal courts issued injunctions and prohibited its enforcement.
President Trump then signed the March 6 EO, which revoked the January EO and was also enjoined by the lower courts from being enforced.
On June 26, the U.S. Supreme Court reviewed these injunctions and in its ruling allowed certain parts of the March 6 EO to proceed subject to reevaluation by the Court next October.
Specifically, the Court said that those individuals who can show a “bona fide relationship” with a “person or entity” in the United States will not be affected by the EO’s 120-day halt to refugee admissions or the 90-day ban on travel from the six designated countries. Those refugees or travelers with “bona fide relationships” can currently be admitted to the United States; however, those who have no family, business, or other ties can be barred from entry.
DOS’s and DHS’s exemptions
The DOS’s enforcement guidelines confirm that the EO’s suspension of entry to the United States for foreign nationals of the six designated countries will not apply to the following individuals:
- Any applicant who has a credible claim of a “bona fide relationship” with a person or entity in the United States;
- Personal Relationships. A relationship with a “person” must be a close familial relationship. “Close family” includes parents, spouses, fiancés, children, adult sons or daughters, and whole or half siblings, including in-law and step relationships. It does not include grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-law, sisters-in-law, and any other “extended” family members.
- Entity Relationships. Any relationship with an entity must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading the EO. The following examples qualify: an I visa applicant employed by foreign media that has a news office based in the United States; students from 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. In contrast, the following scenarios do not qualify: a nonprofit group that seeks out clients from the designated countries, adds them to its client list, and then claims injury from their inclusion in the EO; or an individual whose only tie to the United States is a hotel reservation, whether paid or not.
- Eligible derivatives of principal visa applicants who are either deemed to be exempt from the EO’s suspension of entry or qualify for a waiver under the EO also receive the benefit of the exemption or waiver.
- Any applicant who was in the United States on June 26;
- Any applicant who had a valid visa at 5:00 p.m. EST on January 27, the day Executive Order 13769 was signed;
- Any applicant who had a valid visa on June 29;
- Any lawful permanent resident of the United States;
- Any applicant who is admitted to or paroled into the United States on or after June 26;
- Any applicant who has a document other than a visa, valid on June 29, or issued on any date thereafter, that permits him or her to travel to the United States and seek entry or admission, such as advance parole;
- Any dual national of a country designated under the order when traveling on a passport of a non-designated country and, if needed, holds a valid U.S. visa;
- Any applicant traveling on a diplomatic-type visa;
- Any applicant who has been granted asylum; has already been admitted as a refugee; or has been granted withholding of removal, advance parole, or protection under the CAT; and
- Any asylee and refugee following-to-join spouse (V93) or child (V92) applicant.
What about permanent residents of Canada who are nationals of the affected countries?
Many foreign nationals from the affected countries may also be permanent residents of Canada and present in the United States. In such instances the DOS advises that these individuals can apply for immigrant or non-immigrant visas to the United States at a U.S. consular section in Canada. The consular officer will review each case to determine whether the applicant is affected by the EO and, if so, whether the case qualifies for a waiver.
What about dual nationals?
The EO does not restrict the travel of dual nationals, so long as they are traveling on the passport of an unrestricted country and, if needed, hold a valid U.S. visa. The DOS also said, “Our embassies and consulates around the world will process visa applications and issue nonimmigrant and immigrant visas to otherwise eligible visa applicants who apply with a passport from an unrestricted country, even if they hold dual nationality from one of the six restricted countries.”
What about U.S. lawful permanent residents?
Lawful permanent residents of the United States are not affected by the EO.
Visas will not be revoked
The DOS has confirmed that no visas issued before June 29 will be revoked. Any individual whose visa was marked or cancelled solely as a result of the original EO issued on January 27 will be entitled to a travel document permitting travel to the United States.
Other visa categories
Consular officers have been given detailed instructions to make case-by-case determinations on whether individuals would qualify for visas.
Applicants seeking B (business visitor or tourist) or K (fiancé) visas will need to demonstrate that they have the required “bona fide relationship” in order to be exempt, or that they may qualify for a waiver pursuant to the terms of the EO. Applicants for the other non-immigrant categories (e.g., H- 1B (specialty occupation including most physicians and other healthcare workers), L-1 (intracompany transferee), F-1 (student), E (treaty-trader/treaty-investor), etc.) as well as employment-based immigrant/permanent residency visa applicants will generally be exempt from the EO since they have a formal, documented relationship with a U.S. entity.
What happens if I am denied?
Individuals who are not exempt from the EO’s suspension of entry into the United States can seek a waiver if (i) denying the entry would cause undue hardship, (ii) the entry would not pose a threat to national security, and (iii) the entry would be in the national interest.
Other practice tips
Enforcement of the EO remains very fluid, and the DOS’s and DHS’s guidelines are subject to change without advanced notice. Therefore, when traveling abroad and seeking to re-enter the United States, proceed with caution particularly if you are a citizen of the six affected countries or if you travel through them.
For a list of helpful FAQs, go to https://www.dhs.gov/news/2017/06/29/frequently-asked-questions-protecting-nation-foreign-terrorist-entry-united-states.
Mills Fleming chairs HunterMaclean’s healthcare and immigration practice groups. He can be reached at 912-944-1646 or email@example.com. This memorandum is for informational purposes only and is not legal advice. Courts continue to hear challenges outcomes may affect some details.
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