DHS and DOS Implementation of Travel Executive Order After Supreme Court Decision

Executive Order

 

(Sep. 26, 2017 Update): President Donald Trump issued a proclamation on September 24, 2017 with a new set of travel restrictions for nationals of eight countries. Sudan is no longer included. The effective date of the new proclamation for those affected was September 24, 2017 for those already covered by Executive Order 13780. However, the effective date is October 18, 2017 for those who are currently exempt under the bona fide relationship to a U.S. person or entity exemption. Please see our full article on the new rules to learn more [see article].

(July 20, 2017 Update): In accord with a ruling by Judge Derrick Watson of the United States District Court for the District of Hawaii, the DOS is applying a broader definition of “close familial relationship” than it had initially set forth [PDF version]. Grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and first cousins are currently considered to be within the definition of “close familial relationship.” Half- and step-status is included for all relationships. The Government has an appeal of Judge Watson's decision pending before the United States Court of Appeals for the Ninth Circuit. Please see our article on the Supreme Court's first addressing of the issue to learn more [see article].

Introduction

On June 29, 2017, the Department of State (DOS) and the Department of Homeland Security (DHS) issued documents regarding their implementation of sections of Executive Order 13780 relating to the suspension of entry of nationals of six countries and the suspension of refugee travel (colloquially called the “Travel Ban”). The restrictions took effect at 8:00 P.M. EDT on June 29, 2017, subsequent to the Supreme Court of the United States lifting parts of the lower court injunctions against those sections of Executive Order 13780 in Trump v. International Refugee Assistance Project, 582 U.S. ___ (2017) [see article].

In this article, we will examine the relevant DOS and DHS guidance and explain what it means going forward. Please see the original sources that we will rely upon (all documents captured on July 1, 2017):

DOS: Important Announcement on Executive Order on Visas [PDF version];
DHS: DHS Announces Implementation of Travel Restriction Provisions [PDF version]; and
DHS: Frequently Asked Questions on Protecting the Nation from Foreign Terrorist Entry into the United States [PDF version].

Please see our full articles on the suspension of entry [see article] and suspension of refugee travel [see article] provisions to learn about the text of Executive Order 13780 itself. However, note that this article contains the most up-to-date information about the implementation of Executive Order 13780 following the Supreme Court ruling. For further background on Executive Order 13780, please see our articles comparing it to the January travel order [see article], its suspension of the Visa Interview Waiver Program [see article], and its provisions relating to other changes in immigration policies [see article].

Who Is Covered by the Executive Order?

Section 2(c) of Executive Order 13780 provided for the 90-day suspension of entry of citizens and/or nationals of the following six countries:

Iran
Libya
Somalia
Sudan
Syria
 Yemen

Individuals who lacked a valid visa at 5:00 P.M. EST on January 27, 2017, and who do not have a valid visa as of 8:00 P.M. EDT on June 29, 2017, are covered by the suspension. Visas that were issued by the DOS to individuals from the six affected countries prior to 8:00 P.M. EST on June 29, 2017 will be considered valid for seeking entry into the United States unless they have been or are revoked on another basis under the Executive Order. This suspension will remain in place for 90 days from June 29, 2017, the new effective date of the Executive Order. However, the period may be modified or subsequently extended in the discretion of President Donald Trump.

Section 6(a) of the Executive Order suspends refugee travel. This provision applies to all refugee applicants regardless of nationality, with the following exceptions. The Executive Order does not apply to those refugees who were formally scheduled for transit prior to the new effective date of the Executive Order (8:00 P.M. EDT on June 29, 2017). It also does not apply to those who had already been afforded refugee or asylee status prior to the effective date of the Executive Order. This suspension will remain in place for 120 days from the new effective date of the Executive Order. However, the period may be modified or subsequently extended in the discretion of President Trump.

List of Individuals Not Subject to the Executive Order

The DHS provided a comprehensive list of the classes of individuals who are not subject to Executive Order 13780. We paraphrase the list below (note that several exceptions were discussed in the previous section of this article):

a. Lawful Permanent Residents;
b. Any foreign national admitted to or paroled into the United States on or after June 26, 2017;
c. Those seeking visas in the following nonimmigrant classifications: A1, A2, NATO-1, NATO-2, NATO-3, NATO-4, NATO-5, NATO-6, C2, C3, G1, G2, G3, G4;
d. Any foreign national who has already been granted asylum, any refugee who has already been admitted into the United States, and any individual who has been granted statutory withholding of removal or protection under the Convention Against Torture;
e. Any foreign national who has a document other than a visa, valid on June 26, 2017 (or issued on any date thereafter) that permits him or her to travel to the United States and seek entry or admission (e.g., an advance parole document);
f. Aliens who present boarding foils at the port of entry (including YY or ZZ boarding foils) or transportation letters (including documents issued to following-to-join asylees);
g. A dual national of Iran, Libya, Somalia, Sudan, Syria, or Yemen who is traveling on a passport issued by another country (provided it is not also one of the six countries in section 2(c));
h. Any individual subject to section 2(c) or 6(a) of the Executive Order who obtained a waiver under the terms of the Executive Order [see section] and any individual who is protected by the injunction not stayed by the Supreme Court decision [see section];
i. Any individual who is seeking admission as a refugee who, before, 8 P.M. EDT on June 29, 2017, was formally scheduled for transit by the DOS. If, after that effective date of the Order, a first-time refugee is issued travel documents, those documents will suffice as evidence that he or she has been cleared for travel and is not subject to the Executive Order.

Individuals Protected by Injunction

Point (h) of the DHS list references the injunction that has not been stayed by the Supreme Court. The Supreme Court left in place an injunction against enforcing sections 2(c) or 6(a) of the Executive Order against individuals who have a bona fide relationship with a person or entity in the United States prior to June 26, 2017. Please see the relevant section of our article on the Supreme Court decision to learn about the basis of this section [see section].

First, the DOS explained that “a close familial” relationship may include the following:

Parent (including parent-in-law);
Spouse;
Fiancé;
Child;
Adult son or daughter (or adult son or daughter in-law); and
Sibling (whether whole or half and including step-siblings).

The DOS and DHS initially held that the following familial relationships were not “close” for purpose of the injunction: Grandparent, grandchild, aunt or uncle, niece or nephew, cousin, sibling-in-law, or any other extended family member. However, as we noted in the update, grandparents, grandchildren, siblings-in-law, aunts and uncles, nieces and nephews, and first cousins are currently covered by the injunction in accord with a ruling by Judge Derrick Watson of the United States District Court for the District of Hawaii. Half- and step-status are included for all relationships under the injunction. However, litigation on the issue is ongoing, with a Government appeal currently pending before the Ninth Circuit.

The DHS also explained the interpretation of a relationship to an “entity” in the United States. The Supreme Court made clear that “the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading [the Executive Order].” The Supreme Court listed several examples of relationships that would qualify (non-exhaustive):

A worker who has accepted a qualifying offer of employment from an American company;
A lecturer who has accepted an offer to address an American audience; or
A student who has been admitted to a U.S. university.

However, the relationship must be bona fide and not entered into for purpose of circumventing the Executive Order. The Court provided a very specific example of non-bona fide relationship: “[A nonprofit group dedicated to immigration issues] may not contact foreign nationals from the designated countries, add them to client lists, and then secure their entry by claiming injury from their exclusion.”

It is important to note that, in order for an alien to establish that he or she is covered by the injunction, he or she must submit sufficient documentation establishing the requisite relationship to a U.S. person or entity.

The DOS explained that applicants seeking B, C1, C3, D, or I nonimmigrant visas from the six countries covered by section 2(c) of the Executive Order will be required to establish that they have a bona fide relationship with a U.S. person or entity in order to be protected by the injunction. Qualified applicants in other nonimmigrant visa categories are presumed to be exempt from the Executive Order because the criteria for establishing a qualifying relationship under the injunction is already a part of the requirements for qualifying for a nonimmigrant visa under those categories.

Because of the nature of the injunction, the DOS explained, qualified applicants in the family sponsored immigrant visa categories (immediate relative and preference categories) are exempt from the executive order. This is because qualifying for an immigrant visa in these categories depends on having a relationship to a U.S. person that constitutes a bona fide relationship under the injunction.

The DOS explained that qualified employment-based immigrant visa applicants “are generally exempt” from the Executive Order. This is true because, in general, such applicants have a bona fide and documented relationship with a U.S. entity that was not formed to circumvent the Executive Order. However, certain self-petitioning employment-based first, and employment-based second, immigrant visa applicants may not be covered by the injunction. Such self-petitioning applicants will have to submit evidence establishing a bona fide relationship with a U.S. person or entity in order to be covered by the injunction.

The DHS FAQ addresses another key point. The Supreme Court nominally lifted the injunction against the portion of the Executive Order in which President Trump reduced the fiscal year 2017 refugee cap to 50,000. The United States has already admitted nearly 50,000 refugees. Although the Supreme Court lifted the injunction against the cap reduction, it also made clear that a refugee with a bona fide relationship to a person or entity in the United States may be admitted even if the 50,000 refugee ceiling is reached.

Waivers

Section 3(b) of the Executive Order includes the possibility of waivers for persons subject to its provisions. Although the injunction includes within its scope persons who would have required waivers had the Executive Order been allowed to take effect in full, there are still certain persons subject to the Executive Order who may remain eligible for waivers under section 3(b).

For example, the DOS notes that a person subject to the Executive Order needing urgent medical care in the United States may seek a waiver.

An individual who intends to seek a waiver must ask for one from the DOS and submit information to establish eligibility for a waiver. Please see the relevant section of our article on the Executive Order itself to learn about the standard for the waiver and the evidentiary requirements [see section].

Waiver determinations will be made on a case-by-case basis.

When reading about the waivers, be aware that those persons who are covered by the injunction will not need to seek waivers.

Derivatives

The DOS made clear that, if a principal visa applicant qualifies for an exemption or a waiver under the Executive Order, any qualified derivative(s) are also eligible for visas without having to establish eligibility for an exemption or waiver individually.

Dual Nationals

The dual national of one of the six restricted countries and a non-restricted country will be considered exempt from the Executive Order provided that he or she is seeking a visa based on a passport from the non-restricted country.

Lawful Permanent Residents

As we noted, lawful permanent residents are not subject to the Executive Order. However, individuals applying for an immigrant visa may be subject depending on the individual facts of the case.

Permanent Residents of Canada Who Are Nationals of Restricted Country

A permanent resident of Canada who is also the national of one of the six restricted countries may apply for a visa by presenting his or her passport and proof of permanent resident status in Canada. Such applications must be made at a U.S. consular section in Canada. Consular officers will assess the specific case to determine (1) if the individual is affected by the Executive Order and, if so, (2) if he or she is covered by the injunction or otherwise merits a waiver.

Traveling on Visa Obtained Before the Executive Order

An individual with a valid and unexpired multiple-entry visa will not be barred from traveling abroad and returning to the United States on that visa, provided that he or she travels in accord with the rules of the visa. The same applies to those granted status as refugees or asylees.

The DHS explained that an individual on a single-entry visa obtained prior to the effective date of the Executive Order may not travel abroad and return on that visa. This is because the visa is for a single-entry rather than having anything to do with the Executive Order. However, provided that the individual was present with a visa in the United States on June 26, 2017, he or she will not be affected by the Executive Order when applying for a subsequent visa. The same rule applies to a similarly-situated individual whose visa expires while traveling abroad.

The DOS and DHS will not revoke visas under the provisions of the Executive Order.

Refugee Applications in Progress

The DHS explained that it will continue to conduct refugee interviews during the suspension period. However, no refugee applications may be approved during the suspension period unless the refugee in question is covered by the injunction or otherwise eligible for a waiver under section 6(c).

General Note About Normally Applicable Immigration Rules

It is important to note that an individual who is protected by the injunction against the enforcement of the Executive Order or who may appear to merit consideration for a waiver from its provisions may still be denied a visa under the normal immigration rules. For example, an individual from a restricted country who has a bona fide relationship with a U.S. person or entity but who is found to be otherwise inadmissible when applying for a visa could still be denied the visa based on that inadmissibility (provided that he or she was not eligible for or did not merit a waiver of inadmissibility). Furthermore, although visas will not be revoked under the Executive Order, a visa could be revoked under the generally applicable provisions of the Immigration and Nationality Act (INA) for reasons unrelated to the Executive Order.

In short, the injunction only pertains to the Executive Order, not to the enforcement of unrelated provisions of the INA.

Conclusion

The DOS and DHS provided generally comprehensive rules about how they plan to implement the Executive Order. Between the injunction and the waiver provisions in the Executive Order itself, a significant number of visa applicants from the six restricted countries will be unaffected by the Executive Order's provisions. Although refugee applicants are more likely to be affected than visa applicants, a not insignificant number of refugees will likely also be able to establish a qualifying relationship under the injunction, or they will otherwise merit consideration for a waiver.

An individual from one of the six affected countries or a refugee applicant who may be affected by the Executive Order should consult with an experienced immigration attorney for case-specific guidance.

It is important to note that the DOS and DHS policies may not be the last words on the implementation of Executive Order 13780. As of the publication of this article, Hawaii is seeking clarification in Federal Court regarding what it considers to be the Trump Administration's overly-restrictive interpretation of the injunction. The potential for further litigation regarding the injunction was noted by Justice Clarence Thomas in an opinion concurring in part and dissenting in part in Trump v. International Refugee Assistance Project.

We will update the site with further information pertaining to the Executive Order as it becomes available.