On June 26, 2017, the Supreme Court issued a decision to partially institute a portion of President Trump’s travel ban outlined in Executive Order 13780. On June 29, 2017 at 8 p.m. EST, the travel ban went into effect for a period of 90 days against travelers from Iran, Libya, Somalia, Sudan, Syria, and Yemen, who cannot show a “bona fide relationship” with a person or entity in the U.S.
- Bona Fide Relationship with a Person in the United States: A close familial relationship is required. An individual who seeks to enter the United States to live with or visit a family member, such as a spouse or mother-in-law, clearly has such a relationship. The Department of State has indicated that a “close family” is defined as a parent (including parent-in-law), spouse, fiancé, child, adult son or daughter, son-in law, daughter-in-law, sibling, whether whole or half (including step relationships). “Close family” does not include grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-laws and sisters-in-law, and any other extended family members.
- Bona Fide Relationship with an Entity in the United States: The relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading the Executive Order. The Court specifically stated that students who have been admitted to a U.S. university, a worker who has accepted an offer of employment from a U.S. company, or a lecturer invited to address a U.S. audience would have such a relationship.
The Department of Homeland Security (DHS) issued a statement on June 26, 2017 confirming that it would provide details on implementation after consultation with the Department of Justice (DOJ) and Department of State (DOS). DHS stated that implementation “will be done professionally, with clear and sufficient public notice, particularly to potentially affected travelers, and in coordination with partners in the travel industry.” Until further guidance is provided, the Court’s decision should be interpreted as very narrow, impacting only a limited number of travelers. For example:
- Individuals with Currently Valid Visas: Individuals from the six affected countries who currently hold a valid, unexpired visa may use the visa to travel to the United States. An individual with a valid nonimmigrant or immigrant visa should be permitted to board a plane and present themselves for inspection at a U.S. airport or land port of entry.
- Lawful Permanent Residents, Asylees, and Others Exempted: Lawful Permanent Residents (LPRs), individuals who have been granted asylum, those already admitted as refugees, individuals traveling on advance parole, and those granted withholding of removal and/or Convention Against Torture should be permitted to travel freely without having to demonstrate a bona fide relationship with a person or entity in the United States.
- Diplomats and Dual Nationals: Individuals traveling on diplomatic and related visas (NATO, C-2, G-1, G-2, G-3, or G-4) and dual nationals traveling on a passport issued by a non-designated country should still be permitted to travel freely without having to demonstrate a bona fide relationship with a person or entity in the United States.
- Business Visas (H, L, E, I, O, P, Q, R, and Employment-Based Immigrant Visas): A worker who has accepted an offer of employment from a U.S. company would have a bona fide relationship with a U.S. entity.
- Students and Trainees (F, M, J): Students and exchange visitors who have been admitted to a U.S. university would have a bona fide relationship with a U.S. entity.
- Visitor for Business (B-1): Lecturers invited to address a U.S. audience would have a bona fide relationship with a U.S. entity. It is unclear at this time how individuals traveling to the United States for business conferences or other short-term, non-contractual business interactions will be treated. To the extent possible, such individuals should be prepared to present evidence of a formal, documented relationship with a U.S. entity formed in the ordinary course of business.
- Visitor for Pleasure (B-2): Individuals who wish to visit a family member, such as a spouse or mother-in-law, have close familial relationships. Individuals from the six designated countries who are not planning to visit family members and who are coming for other reasons (such as sight-seeing and tourism) may be barred from entering.
- Individuals Applying for Visas: Individuals from the six designated countries who do not have a valid visa will be required to demonstrate a credible claim of a bona fide relationship with a person or entity in the United States during the visa interview.
Department of Homeland Security Announces New Security Measures
On June 28, 2017, Secretary of Homeland Security John Kelly announced the implementation of enhanced security measures for all commercial flights to the United States. These measures include enhanced screening of passengers and electronic devices, as well as heightened security standards for aircraft and airports. The new measures will include the following:
- Enhancing overall passenger screening;
- Conducting heightened screening of personal electronic devices;
- Increasing security protocols around aircraft and in passenger areas; and
- Deploying advanced technology, expanding canine screening, and establishing additional preclearance locations.
Please be advised these issues continue to remain fluid and may change at any time. Additional updates will be provided as they become available.
This alert is not legal advice. We recommend that you contact any of the following attorneys in our Firm’s Immigration Department to discuss specific concernss:
Clara DeMatteis Mager