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New Guidance on Trump’s Revised Travel Ban Effective June 29

By Michael H. Neifach and Amy L. Peck
  • June 29, 2017

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, according to reports. The guidance will go into effect on June 29, at 8:00 p.m. EDT.

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:

  • Iran
  • Libya
  • Somalia
  • Sudan
  • Syria
  • Yemen

The State Department said that it planned to keep travelers informed and deploy the travel bans “in a professional, organized and timely way.”

Who is exempt from the revised Executive Order?

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

Will individuals already issued visas be allowed to travel to the U.S. or will they separately have to establish a bona fide relationship?

Initial information is that visas issued prior to June 29, 2017, at 8:00 p.m., will not be revoked under the new travel rules. Early indication from CBP is that they expect minimal impact at U.S. ports of entry, because all individuals already in possession of valid visas will be authorized to travel. However, in light of confusion at the airports in January 2017 with implementation of the initial travel ban (issued shortly after President Trump’s inauguration), individuals from the six designated countries should be prepared for potential delays at the airport as these new processes are rolled out.

Are individuals who are not directly covered by the Executive Order potentially subject to additional or extreme vetting?

While it appears that the travel ban as reinstated by the Supreme Court may affect a limited number of individuals, a much broader category of individuals may be subject to extreme vetting when applying for visas or for admission to the U.S.

The government recently released its new DS-5535 Form that can be used by consular officials to assess whether an individual should be admitted to the U.S. With the form as a reference, CBP officers at the port of entry might choose to ask for some of this information to determine admissibility.

The DS-5535 Form requests:

  • 15 years of travel history
  • 15 years of address history
  • Information on all spouses, partners, siblings, and children
  • Identification of all websites or applications used to create or share content over a five-year period

Any individuals might be asked for this information, but the following may be more “at risk”:

  • Individuals from the six designated countries
  • Individuals who have travelled to those countries or other “suspect” countries
  • Individuals who are dual nationals where one nationality is “suspect”
  • Individuals who have previously been subjected to background checks or visa delays
  • Individuals who have previously been taken to secondary inspection
  • Individuals who previously were subject to National Security Entry-Exit Registration System (NSEERS) registration
  • Individuals who study or work with technologies that might be considered “dual use” technologies
  • Individuals with common names or individuals with inconsistent names on immigration documents

***

We will continue to provide updates on this and other developments. If you have any questions about whether your employees or visitors might be at risk or subject to the travel ban or extreme vetting, please contact your Jackson Lewis attorney for specific guidance and legal advice.

©2017 Jackson Lewis P.C. This Update is provided for informational purposes only. It is not intended as legal advice nor does it create an attorney/client relationship between Jackson Lewis and any readers or recipients. Readers should consult counsel of their own choosing to discuss how these matters relate to their individual circumstances. Reproduction in whole or in part is prohibited without the express written consent of Jackson Lewis.

This Update may be considered attorney advertising in some states. Furthermore, prior results do not guarantee a similar outcome.

Jackson Lewis P.C. represents management exclusively in workplace law and related litigation. Our attorneys are available to assist employers in their compliance efforts and to represent employers in matters before state and federal courts and administrative agencies. For more information, please contact the attorney(s) listed or the Jackson Lewis attorney with whom you regularly work.

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