New guidance explaining the criteria for visa applicants was issued by the Department of State to U.S. embassies and consulates late on June 28, 2017. The guidance is in response to the U.S. Supreme Court’s June 26, 2017, partial reinstatement of President Donald Trump’s revised Executive Order (dated March 6, 2017). The revised EO bars travelers from six countries from entering the U.S. for 90 days from when the EO takes effect, to allow the government to review its vetting procedures. It also imposes a 120-day bar on refugees entering the country.
Visas issued prior to June 29 will not be revoked. However, unless they can establish a “bona fide relationship” with certain U.S.-based family or a U.S.-based entity, visas will no longer be issued to individuals from the following six designated countries:
Many individuals from the six designated countries are not subject to the revised Executive Order at all. They include the following:
- Legal permanent residents (“green card holders”), asylees, and refugees already admitted to the U.S.
- Individuals with currently valid immigrant and nonimmigrant visas and individuals with advance parole
- Dual nationals traveling on a passport issued by a non-designated country
- Individuals travelling on diplomatic or diplomatic-like visas
Who will be allowed to travel to the United States based upon the Court’s ruling?
The Supreme Court, in a broadly stated opinion, allowed individuals from the designated countries who have a “bona fide relationship” with a U.S. individual or entity to remain eligible for a visa and travel to the U.S. The Court provided some examples, including:
- Individuals who have accepted an offer of employment from a U.S. entity
- Individuals who wish to visit or live with a close family member
- Students admitted to a U.S. university
- Lecturers invited to address a U.S. audience
Who is precluded from travel to the United States based upon the Court’s ruling?
Individuals from one of the designated countries without “bona fide” connections are subject the revised Executive Order pursuant to the Court’s ruling. Such individuals may include:
- Tourists for pleasure without a bona fide connection to family in the U.S.
- Refugees who have no established relationship with a U.S. entity or a U.S. family member
- Individuals who have instituted relationships with U.S. entities only for the purpose of exemption from the reinstated travel bans
How will the Department of Homeland Security and the State Department implement the revised Executive Order?
According to the initial government implementation guidance, individuals from the affected countries seeking a new visa must prove a bona fide relationship with a close family member or a U.S. entity.
The guidance said a close family relationship is being a parent (including an in-law), spouse, child, adult son or daughter, son-in-law, daughter-in-law, or sibling, including a step-sibling and other step-family.
Close family specifically does not include a grandparent, grandchild, aunt, uncle, niece, nephew, cousin, brother-in-law, sister-in-law, fiancé, or other extended family members.
The guidance said a bona fide relationship with a U.S. entity includes broad categories of individuals such as journalists, students, workers, or lecturers with valid invitations or employment contracts in the U.S. The guidance said that a hotel reservation or car rental agreement, even if it was prepaid, would not count. A “bona fide” relationship does not include any individual seeking a relationship with a U.S. entity for the purpose of avoiding the travel ban.
Bona fide relationships include individuals eligible for family- or employment-based immigrant visa (green card) applications.
Those applying for Diversity Lottery Visas will have to prove that they have a relevant bona fide relationship.
Consular or Customs and Border Protection (CBP) officers, in their discretion, should still be able to grant waivers provided in the revised EO. These waivers can be granted on a case-by-case basis if the officer finds that denying entry would cause an undue hardship, the individual does not pose a threat to national security, and it would be in the national interest to grant the waiver to:
- Individuals with previously established significant contacts with the U.S.
- Individuals with significant business or professional obligations in the U.S.
- Infants, adopted children, or individuals in need of urgent medical care
- Individuals travelling for business with a recognized international organization or the U.S. government
- Legal residents of Canada who apply for a visa in Canada
Under the limited State Department guidance, those who might be affected by the travel ban unless they receive a Consular waiver include the following:
- Individuals applying for immigrant visas based upon petitions that do not necessarily require a U.S. sponsor, such as EB-1 Extraordinary Ability Petitions and EB-2 National Interest Waiver Petitions
- Business visitors coming for conferences, meetings, or non-contractual purposes
- Refugees who only have a relationship with a resettlement agency
- Individuals applying for Fiancé (K) visas
For additional information, see http://www.jacksonlewis.com/publication/new-guidance-trump-s-revised-travel-ban-effective-june-29.