Travel Advisory for Nationals of Certain Countries Pursuant to Executive Orders

July 20, 2017

 

Shortlink to this advisory: www.nafsa.org/EOentry

This page discusses the "90-Day Travel Ban" applicable to certain nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen, under Section 2(c) of Executive Order 13780.

Updates

A partially reinstated 90-day travel ban was instituted on Thursday, June 29, at 8:00 PM, EDT. Agencies have issued implementation guidance:

This follows a June 26, 2017 U.S. Supreme Court decision that partially granted the government's request to stay the preliminary injunctions on the 90-day travel ban that had been issued by U.S. District Courts in Maryland and Hawaii.

The Supreme Court decision only partially restored the 90-day travel ban. The lower courts' injunctions on the ban remain intact for individuals "who have a credible claim of a bona fide relationship with a person or entity in the United States."

For a "relationship with a person" in the United States to serve as the basis for the Supreme Court's exception, a "close familial relationship is required." Only the following relationships will a person in the United States will qualify: 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, grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and first cousins.

For a "relationship with an entity" in the United States to serve as the basis for the Supreme Court's exception, "the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading EO-2." The Court gives the following examples of individuals who would likely have the required "bona fide relationship" with a U.S. entity, and therefore would remain exempt from the 90-day ban:

  • Students who have been admitted to a U.S. school
  • Workers who accept an offer of employment from a U.S. employer
  • Lecturers invited to address an American audience

Most students, exchange visitors, employment-based nonimmigrants and immigrants, and their dependents, should be able to meet this condition, and should therefore continue to be protected from the 90-day ban.

The Court stated in its decision:

"In practical terms, this means that §2(c) may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States. All other foreign nationals are subject to the provisions of EO-2."

"The facts of these cases illustrate the sort of relationship that qualifies. For individuals, a close familial relationship is required. A foreign national who wishes to enter the United States to live with or visit a family member, like Doe's wife or Dr. Elshikh's mother-in-law, clearly has such a relationship. As for entities, the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading EO-2. The students from the designated countries who have been admitted to the University of Hawaii have such a relationship with an American entity. So too would a worker who accepted an offer of employment from an American company or a lecturer invited to address an American audience."

The Supreme Court also formally lifted the injunction on the government's study that could lead, under section 2(e) of the executive order, to an indefinite ban on entry by nationals of countries that do not provide the U.S. government with sufficient information on their citizens who are applying for U.S. visas or immigration benefits.

Executive Order Litigation Updates

Other sections of Executive Order 13780 that are not enjoined by court order became effective at 12:01 a.m. eastern time on March 16, 2017.

Effective Dates

Certain nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen who do not have "a credible claim of a bona fide relationship with a person or entity in the United States" will be subject to the 90-day ban provisions 72 hours after the June 26, 2017 Supreme Court decision. According to a Department of State cable, the partially reinstated 90-day travel ban became effective on Thursday, June 29, at 8:00 PM, EDT.

Executive Order 13780 provisions other than Section 2(c) [the 90-day travel ban on six countries] and Section 6 (the 120-day refugee admissions bar) had already become effective; for example:

Executive Order 13780's Section 2(c) 90-day travel ban on certain nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen was originally set to start on March 16, 2017. This 90-day period would have ended on June 14, 2017. However, President Trump reset that effective date in a June 12, 2017 memorandum, stating that any enforceable parts of the travel ban would take effect 72 hours after a court decision lifting the injunctions, so the partial lifting of the section 2(c) injunction went into effect on June 29, 2017.

DHS posted a notice that it will consult with DOS and DOJ to coordinate implementation of the partially restored travel ban "professionally, with clear and sufficient public notice, particularly to potentially affected travelers, and in coordination with partners in the travel industry."

Countries Covered

The 90-day entry bar called for by Executive Order 13780 affects citizens of six of the seven countries that had been selected in the prior 90-day bar. Iraq was removed from the list of countries in the new executive order.

  1. Iran
  2. Libya
  3. Somalia
  4. Sudan
  5. Syria
  6. Yemen

Basics of the Section 2(c) 90-day travel ban

Section 2(c) of Executive Order 13780 established a 90-day ban on entry of certain nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen. President Trump asserted INA 212(f) as an underlying basis of the ban. That paragraph of the Immigration and Nationality Act provides that, "(f) Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate."

By the wording of the executive order and by the language of the June 26, 2017 U.S. Supreme Court decision, many nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen are exempt from the 90-day travel ban. Someone who is not exempt would have to qualify for a waiver in order to be issued a visa or to enter the United States.

Exceptions and exemptions

Combining the language of the executive order, the Supreme Court decision, and DOS guidance, the following nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen are exempt from the 90-day travel ban:

  1. Any applicant who has a credible claim of a bona fide relationship with a person or entity in the United States.
  2. Any applicant who was in the United States on June 26, 2017;
  3. Any applicant who had a valid visa at 5:00 p.m. EST on January 27, 2017, the day E.O. 13769 was signed;
  4. Any applicant who had a valid visa on June 29, 2017;
  5. Any lawful permanent resident of the United States;
  6. Any applicant who is admitted to or paroled into the United States on or after June 26, 2017;
  7. Any applicant who has a document other than a visa, valid on June 29, 2017, 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;
  8. Any dual national of a country designated under the order when traveling on a passport issued by a nondesignated country;
  9. Any applicant traveling on an A-1, A-2, NATO-1 through NATO-6 visa, C-2 for travel to the United Nations, C-3, G-1, G-2, G-3, or G-4 visa, or a diplomatic-type visa of any classification;
  10. Any applicant who has been granted asylum; any refugee who has already been admitted to the United States; or any individual who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture; and
  11. Any V92 or V93 applicant (asylee and refugee following-to-join spouse and children).

An individual who fits into any one of these categories should be exempt from the 90-day Travel Ban.

Discussion: "bona fide relationship with a person or entity in the United States"

The first exception is based on the June 26, 2017 U.S. Supreme Court decision, which held that the Section 2(c) 90-day travel ban "may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States."

Relationship to a person in the United States

The June 26, 2017 U.S. Supreme Court decision states that "a close familial relationship is required" for a relationship with a person in the United States to serve as the basis for an exception to the 90-day travel ban. A DOS FAQ further defines "close familiar relationship" 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
  • this includes step relationships
  • Grandparent
  • Grandchild
  • Brother-in-law
  • Sister-in-law
  • Aunt
  • Uncle
  • Niece
  • Nephew and
  • Cousin (first cousins only, according to the Department of State's updated FAQ)

Agency guidance originally stated that "'close family' did not include grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers- and sisters-in-law, and any other 'extended' family members." However, on July 13, 2017, the U.S. District Court for the District of Hawaii ruled that the administration's definition of "close family relationship" was overly narrow, and modified its injunction to add grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins to the list of close family members that are exempt from the 90-day travel ban. On July 14, 2017, the Justice Department appealed this expansion order to the Ninth Circuit Court of Appeals, and filed a motion with the U.S. Supreme Court to clarify the June 26, 2017 SCOTUS decision and to stay the Hawaii Court's expansion order. On July 19, 2017, the Supreme Court denied in part the Justice Department's motion to stay, upholding the Hawaii Court's expanded list of "close family."

Relationship to an entity in the United States

An individual might also be exempt from the 90-day travel ban if he or she has a bona fide relationship with an entity in the United States. A U.S. school, exchange visitor program, or employer will normally constitute an "entity" for this purpose. The June 26, 2017 U.S. Supreme Court decision "must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading EO–2" (i.e., Executive Order 13780). The Department of State cable gives the following examples of relationships with an entity in the United States that will qualify for an exception to the 90-day travel ban:

  • "An eligible I visa applicant employed by foreign media that has a news office based in the United States would be covered by this exemption"
  • "Students from designated countries who have been admitted to U.S. educational institutions have a required relationship with an entity in the United States"
  • "A worker who accepted an offer of employment from a company in the United States or a lecturer invited to address an audience in the United States would be exempt."

The Department of State cable notes that some visa categories would be presumed to be exempt from the 90-day travel ban, because a "bona fide relationship to a person or entity is inherent in the visa classification."

  • Regarding nonimmigrant visas, the Department of State cable notes that if a consular official determines that "an applicant has established eligibility for a nonimmigrant visa in a classification other than a B, C-1, D, I, or K visa, then the applicant is exempt from the E.O., as their bona fide relationship to a person or entity is inherent in the visa classification. Eligible derivatives of these classifications are also exempt."
  • Regarding immigrant visas, the Department of State cable notes that if a consular official determines that "an applicant has established eligibility for an immigrant visa in the following classifications - immediate relatives, family-based, and employment-based (other than certain self-petitioning employment-based first preference applicants with no job offer in the United States and SIV applicants under INA 101a(27)) - then the applicant and any eligible derivatives are exempt from the E.O."

In terms of documenting eligibility for an exception to the 90-day travel ban:

  • Students and exchange visitors
    • The Department of State cable states that "students from designated countries who have been admitted to U.S. educational institutions have a required relationship with an entity in the United States.
    • An F-1 or M-1 student or J-1 exchange visitor should be able to establish this formal relationship with a U.S. school or program sponsor serving as the "U.S. entity," and the school's issuance of a Form I-20 or DS-2019 and a properly maintained SEVIS record as the formal documentation of that relationship.
    • Students on post-completion OPT and STEM OPT and exchange visitors on post-completion academic training should also be viewed as having the requisite relationship to a U.S. entity.
    • The Department of State cable states that establishing eligibility for a nonimmigrant visa other than "B, C-1, D, I, or K" may be considered a per se exception, "as their bona fide relationship to a person or entity is inherent in the visa classification."
    • Following the the Department of State cable guidance that states "eligible derivatives of these classifications are also exempt," properly documented F-2, M-2, and J-2 dependents should also be exempt from the 90-day travel ban.
     
  • Employment-based nonimmigrants
    • An employee should be able to establish the formal relationship with a U.S. employer serving as the "U.S. entity," and the employer's offer of employment and approved employment-based petition as the formal documentation of that relationship. This would cover employment-based nonimmigrants such as H-1B and O-1.
    • The Department of State cable states that establishing eligibility for a nonimmigrant visa other than "B, C-1, D, I, or K" may be considered a per se exception, "as their bona fide relationship to a person or entity is inherent in the visa classification."
    • Following the Department of State cable guidance that states, "eligible derivatives of these classifications are also exempt," properly documented H-4 and O-1 dependents should also be exempt from the 90-day travel ban.
     
  • B visitors
    • Although the DOS cable does not recognize a B visitor visa as having an inherent relationship to a person or entity in the United States, an applicant could still document such a relationship on a case-by-case basis for purposes of the coming within the Supreme Court's exception to the 90-day travel ban. For instance, the Supreme Court referenced "a lecturer invited to address an American audience" as an example of an adequate relationship to an entity in the United States.
    • By the same token, other, weaker relationships might not serve as the basis for the court-ordered exception to the 90-day travel ban. For example, both the Supreme Court and DOS state that "a nonprofit group devoted 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."
    • Likewise, the Department of State cable states that "a hotel reservation, whether or not paid, would not constitute a bona fide relationship with an entity in the United States."
     
  • Immigrants
    • The Department of State cable states that "if you determine an applicant has established eligibility for an immigrant visa in the following classifications - immediate relatives, family-based, and employment-based (other than certain self-petitioning employment-based first preference applicants with no job offer in the United States and SIV applicants under INA 101a(27)) - then the applicant and any eligible derivatives are exempt from the E.O."
     

Discussion: Date-based exemptions from the 90-day travel ban

Items 2, 3, and 4 of Paragraph 10 of the Department of State cable list the following additional categories of individuals who are exempt from the 90-day Travel Ban:

  • Any applicant who was in the United States on June 26, 2017;
  • Any applicant who had a valid visa at 5:00 p.m. EST on January 27, 2017, the day E.O. 13769 was signed; or
  • Any applicant who had a valid visa on June 29, 2017;

These groups are exempt from the 90-day travel ban based on the Executive Order itself. Section 3(a) of Executive Order 13780 states that "the suspension of entry pursuant to section 2 of this order shall apply only to foreign nationals of the designated countries who:

(i) are outside the United States on the effective date of this order;

(ii) did not have a valid visa at 5:00 p.m., eastern standard time on January 27, 2017; and

(iii) do not have a valid visa on the effective date of this order.

The June 26, 2017 U.S. Supreme Court decision in combination with the June 12, 2017 presidential memorandum reset the "effective date of this order" to June 29, 2017.

The Department of State cable improves the clarity of the executive order's list by presenting it as a list of affirmatives instead of a list of negatives, and uses the word "or" instead of "and" to clarify that an individual qualifies for an exemption under any one of these bases.

Paragraph 4 of the DOS cable further clarifies that individuals who qualify for an exemption on one of these bases continue to be exempt "even after their visas expire or they leave the United States," and that "No visas will be revoked based on the E.O., even if issued during the period in which Section 2(c) was enjoined by court order or during the 72-hour implementation period."

For example, presence in the U.S. on June 28, 2017 is one exception, having a visa valid as of June 28, 2017 is another exception, and having a bona fide relationship to a person or entity in the United States is another exception. A student in the United States on June 28, 2017 with a visa valid until August 15, 2017, then, would be exempt from the 2(c) 90-day travel ban under all three of these exceptions. Since she has a valid visa, she would not have to establish a relationship (although she could if she wanted to) in order to use that visa to travel, and she should not be barred by the 2(c) travel ban alone on getting a new visa in the future, because the 2(c) ban does not apply to her.

EO 13780 itself states in section 12(c) that "(c) No immigrant or nonimmigrant visa issued before the effective date of this order shall be revoked pursuant to this order." The DOS FAQ reinforces this, stating: "The E.O. provides specifically that no visas issued before its effective date will be revoked pursuant to the Executive Order, and the E.O. does not apply to nationals of affected countries who have valid visas on June 29, 2017." The following DHS FAQs also clarify this:

Q7. I am presently in the United States in possession of a valid multiple entry visa but am a national of one of the six affected countries, can I travel abroad and return to the United States?

Yes. Individuals within the United States with valid multiple entry visas on June 26, 2017 are eligible for travel to and from the United States, provided the visa remains valid and the traveler is otherwise admissible. All foreign nationals traveling with a visa must satisfy all admissibility requirements for entry. Additional information on applying for admission to the United States is available at CBP.gov.

Q8. I am from one of the six countries, currently in the United States in possession of a valid visa and have planned overseas travel. My visa will expire while I am overseas, can I return to the United States?

Travelers must have a valid visa to travel to the United States, regardless of the Executive Order. Travelers who do not have a valid visa due to its expiration while abroad must obtain a new valid visa prior to returning to the United States. If you were present in the United States on June 26, 2017, the Executive Order will not apply to you when you apply for a subsequent visa. Please contact the Department of State for additional information pertaining to applying for a new visa.

That said, all travelers assume the risk of getting stuck abroad or stopped at a POE by an official who misunderstands law and policy. Travelers who want advice to help weigh the risks and make decisions can seek the services of an experienced immigration lawyer.

Discussion: Other categorical exemptions from the 90-day travel ban

Exemptions 5 through 11 in the Department of State cable include:

  • 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, 2017;
  • Any applicant who has a document other than a visa, valid on June 29, 2017, 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 issued by a nondesignated country;
  • Any applicant traveling on an A-1, A-2, NATO-1 through NATO-6 visa, C-2 for travel to the United Nations, C-3, G-1, G-2, G-3, or G-4 visa, or a diplomatic-type visa of any classification;
  • Any applicant who has been granted asylum; any refugee who has already been admitted to the United States; or any individual who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture; and
  • Any V92 or V93 applicant (asylee and refugee following-to-join spouse and children).

This list is based on Section 3(b) of Executive Order 13780.

Waivers

Individuals who are nationals of one of the 6 countries who are not exempt from the 90-day travel ban would be subject it, unless they qualify for a waiver. Section 3(c) of Executive Order 13780 gives consular officers and CBP officials the authority to waive the bar on entry on a case-by-case basis, if a foreign national who would otherwise be subject to the bar "has demonstrated to the officer's satisfaction that denying entry during the suspension period would cause undue hardship, and that his or her entry would not pose a threat to national security and would be in the national interest."

Sections 3(c) waivers

(c) Waivers. Notwithstanding the suspension of entry pursuant to section 2 of this order, a consular officer, or, as appropriate, the Commissioner, U.S. Customs and Border Protection (CBP), or the Commissioner's delegee, may, in the consular officer's or the CBP official's discretion, decide on a case-by-case basis to authorize the issuance of a visa to, or to permit the entry of, a foreign national for whom entry is otherwise suspended if the foreign national has demonstrated to the officer's satisfaction that denying entry during the suspension period would cause undue hardship, and that his or her entry would not pose a threat to national security and would be in the national interest. Unless otherwise specified by the Secretary of Homeland Security, any waiver issued by a consular officer as part of the visa issuance process will be effective both for the issuance of a visa and any subsequent entry on that visa, but will leave all other requirements for admission or entry unchanged...

Because the standard for establishing eligibility for a waiver is so broad, section 3(c) also offers nine examples of circumstances where a case-by-case waiver could be appropriate. These examples in the executive order are not an exclusive list, nor are they a "guarantee." Other situations where an applicant can establish that his or her entry meets the standard for a waiver might also be considered by a consular or immigration official. Note that some of these reasons for a waiver are now considered exceptions under the Supreme Court decision, and that DOS should process those an exception, rather than as a waiver.

(i) the foreign national has previously been admitted to the United States for a continuous period of work, study, or other long-term activity, is outside the United States on the effective date of this order, seeks to reenter the United States to resume that activity, and the denial of reentry during the suspension period would impair that activity;

(ii) the foreign national has previously established significant contacts with the United States but is outside the United States on the effective date of this order for work, study, or other lawful activity;

(iii) the foreign national seeks to enter the United States for significant business or professional obligations and the denial of entry during the suspension period would impair those obligations;

(iv) the foreign national seeks to enter the United States to visit or reside with a close family member (e.g., a spouse, child, or parent) who is a United States citizen, lawful permanent resident, or alien lawfully admitted on a valid nonimmigrant visa, and the denial of entry during the suspension period would cause undue hardship;

(v) the foreign national is an infant, a young child or adoptee, an individual needing urgent medical care, or someone whose entry is otherwise justified by the special circumstances of the case;

(vi) the foreign national has been employed by, or on behalf of, the United States Government (or is an eligible dependent of such an employee) and the employee can document that he or she has provided faithful and valuable service to the United States Government;

(vii) the foreign national is traveling for purposes related to an international organization designated under the International Organizations Immunities Act (IOIA), 22 U.S.C. 288 et seq., traveling for purposes of conducting meetings or business with the United States Government, or traveling to conduct business on behalf of an international organization not designated under the IOIA;

(viii) the foreign national is a landed Canadian immigrant who applies for a visa at a location within Canada; or

(ix) the foreign national is traveling as a United States Government-sponsored exchange visitor.

In terms of the waiver mechanism, there will be no separate waiver request that is not connected to an actual application for a visa or for admission to the United States. Here is what the DOS cable says about waivers:

14. (SBU) The E.O. permits consular officers to grant waivers and authorize the issuance of a visa on a case-by-case basis when the applicant demonstrates to the officer's satisfaction that the following three criteria are all met:

a.) Denying entry during the 90-day suspension would cause undue hardship;

b.) His or her entry would not pose a threat to national security; and

c.) His or her entry would be in the national interest.

15. (SBU) The E.O. lists the following examples of circumstances in which an applicant may be considered for a waiver, subject to meeting the three requirements above. Note that some of the waiver examples listed in the E.O. are now considered exemptions in light of the Supreme Court's ruling. Consular officers should determine whether individuals are exempt from the E.O. under standards described above, before considering the availability of a waiver under the standards described in this paragraph. Unless the adjudicating consular officer has particular concerns about a case that causes the officer to believe that that issuance may not be in the national interest, a determination that a case falls under any circumstance listed in this paragraph is a sufficient basis for concluding a waiver is in the national interest. Determining that a case falls under some of these circumstances may also be a sufficient basis for concluding that denying entry during the 90-day suspension would cause undue hardship:

a.) The applicant has previously established significant contacts with the United States but is outside the United States on the effective date of the E.O. for work, study, or other lawful activity;

b.) The applicant seeks to enter the United States for significant business or professional obligations and the denial of entry during the suspension period would impair those obligations;

c.) The applicant is an infant, a young child, or adoptee, an individual needing urgent medical care, or someone whose entry is otherwise justified by the special circumstances of the case;

d.) The applicant is traveling for purposes related to an international organization designated under the International Organizations Immunities Act, traveling for purposes of conducting meetings or business with the United States government, or traveling to conduct business on behalf of an international organization not designated under the IOIA; or

e.) The applicant is a permanent resident of Canada who applies for a visa at a location within Canada.

16. (SBU) Listed in this paragraph are other circumstances in which an applicant may be considered for a waiver, subject to meeting the three requirements in paragraph 14. Consular officers should determine whether individuals are exempt from the E.O. under standards described above, before considering the availability of a waiver under the standards in paragraph 15. Unless the adjudicating consular officer has particular concerns about a case that suggest issuance may not be in the national interest, determining that a case falls under any circumstance listed in this paragraph is a sufficient basis for concluding a waiver is in the national interest. Determining that a case falls under some of these circumstances may also be a sufficient basis for concluding that denying entry during the 90-day suspension would cause undue hardship:

a.) The applicant is a high-level government official traveling on official business who is not eligible for the diplomatic visa normally accorded to foreign officials of national governments (A or G visa). Examples include governors and other appropriate members of sub-national (state/local/regional) governments; and members of sub-national and regional security forces; and

b.) Cases where all three criteria in paragraph 14 are met and the Chief of Mission or Assistant Secretary of a Bureau supports the waiver.

17. (SBU) If the applicant qualifies for a waiver based on criteria in paragraphs 14 or 15, the consular officer may issue the visa with the concurrence of the Visa Chief (IV or NIV) or the Consular Section Chief. The visa should be annotated to read, "Exempt or Waived from E.O. 13780." Case notes must reflect the basis for the waiver; the undue hardship that would be caused by denying entry during the suspension; the national interest; and the position title of the manager concurring with the waiver. To document national interest in case notes in circumstances falling under paragraph 14 or paragraph 15(a), (b), or (c), the consular officer may write, "National interest was established by the applicant demonstrating satisfaction of the requirements for the waiver based on [insert brief description of category of waiver]."

18. (SBU) If the applicant does not qualify under one of the listed waiver categories in paragraphs 14 or 15, but the interviewing officer and consular manager believe that the applicant meets the requirements in paragraph 14 above and therefore should qualify for a waiver, then the case should be submitted to the Visa Office for consideration. These cases should be submitted via email to countries-of-concern-inquiries@state.gov. The Visa Office will review these requests and reply to posts within two business days. Consular officers should be able to approve the majority of waiver cases without review by the Visa Office due to the broad authority granted in the E.O.

Some implementation questions

The partial restoration of the Section 2(c) 90-day travel ban is very new, and will require additional interpretation and agency guidance.

Consular and immigration officials still have the obligation to determine eligibility for visas or admission to the United States on a case-by-case basis. In general, we can hope for the best, as most students, scholars, and employment-based nonimmigrants can clearly document their bona fide relationship with a U.S. school or employer. As far as process is concerned, the Department of State cable clarifies that:

  • DOS will continue scheduling nonimmigrant and immigrant visa interviews for applicants of the six indicated nationalities.
  • Whether an applicant is exempt or qualified for a waiver will be determined on a case-by-case basis during the course of a visa interview.
  • Beginning 8:00 p.m. EDT June 29, 2017, applicants presenting passports from any of the six countries should be interviewed and adjudicated following these general procedures:
    • Officers should first determine whether the applicant is eligible for a visa under the INA, without regard to the executive order.
    • Applicants found ineligible for grounds unrelated to the executive order should be refused according to standard procedures.
    • If an applicant is found otherwise eligible for the visa, the consular officer will determine during the interview whether the applicant is exempt from the 90-day travel ban, and if not, whether the individual qualifies for a waiver.
    • Applicants who are determined to be exempt from the 90-day travel ban or qualify for a waiver should be granted the visa, and the visa should be annotated to state, "Exempt or Waived from E.O. 13780."
    • Interviewing officers must also enter a clear case note stating the specific reason why the applicant is exempt from the E.O.'s suspension of entry. If consular officers are unclear if an applicant qualifies for an exemption, the cases should be refused under INA 221(g) and the consular officer should request an advisory opinion from VO/L/A following current guidance in 9 FAM 304.3-1.
    • Applicants who are not exempt from the 90-day travel ban and who do not qualify for a waiver should be refused the visa.
     

Future, indefinite bar under section 2(e)

Section 2(e) of Executive Order 13780 established the framework for a separate indefinite entry bar that could apply to any country that is unwilling or unable to provide the United States with the information that it decides is needed "in order to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat." For more details, consult:

NAFSA Advisory on Future Indefinite Entry Bar

Disclaimer

This NAFSA advisory consists of general information only, and does not constitute legal advice. Individual students and scholars with detailed questions, or who are in need of legal advice, should be encouraged to consult an experienced immigration attorney.