Travel Advisory for Nationals of Certain Countries Pursuant to Executive Orders

June 26, 2017

 

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

Updates

In a June 26, 2017 decision, the U.S. Supreme Court partially granted the government's request to stay the preliminary injunctions on the 90-day travel ban, which had been issued by U.S. District Courts in Maryland and Hawaii. The decision, however, contains an important exception that upholds the injunction for individuals "who have a credible claim of a bona fide relationship with a person or entity in the United States." To qualify as a bona fide relationship with a U.S. entity, the Court states that "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 (e.g., F-1, M-1, or J-1 student)
  • Workers who accept an offer of employment from a U.S. employer (e.g., H-1B, O-1, TN)
  • Lecturers invited to address an American audience

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.

Executive Order Litigation Updates

Read Executive Order 13780

Effective Dates

A June 26, 2017 Supreme Court decision lets stand the preliminary injunctions ordered by the U.S. District Courts in Maryland and Hawaii on enforcement of the Section 2(c) 90-day travel ban of individuals from Iran, Libya, Somalia, Sudan, Syria, and Yemen, provided they have "a credible claim of a bona fide relationship with a person or entity in the United States." Most students, exchange visitors, and employment-based nonimmigrants should be able to meet this condition, and should therefore continue to be protected from the 90-day ban.

Individuals 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 Supreme Court's June 26, 2017 decision.

Executive Order 13780 provisions other than Section 2(c) [the 90-day entry bar on six countries] and Section 6 (the 120-day refugee admissions bar) are now 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 13 or 14, 2017, depending on whether you count the first and last days of the 90-day period. 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 should go into effect on our about 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) entry bar: the rule and exceptions to the rule

Section 2(c) Executive Order 13780 established a 90-day bar on entry of certain citizens of the 6 countries. Individuals from these countries 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 Supreme Court's June 26, 2017 decision. The 90-day bar directs "that the entry into the United States of nationals of those six countries be suspended for 90 days from the effective date of this order, subject to the limitations, waivers, and exceptions set forth in sections 3 and 12 of this order." Following a common regulatory model, the executive order sets a general rule that is modified by exceptions and waivers to the entry bar.

General rule

Section 3(a) establishes the general scope of the entry bar. Individuals who are outside the scope of the bar, as well as individuals who have "a credible claim of a bona fide relationship with a person or entity in the United States," are not subject to the bar, and would therefore not need an exception or a waiver in order to travel to and from the United States as usual.

Section 3(a) - Scope of the entry bar

(a) Scope. Subject to the exceptions set forth in subsection (b) of this section and any waiver under subsection (c) of this section, 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.

 

Interpreting this provision, a DHS executive order FAQ stated,

Who is subject to the suspension of entry under the Executive Order?

"Per the Executive Order, foreign nationals from Sudan, Syria, Iran, Libya, Somalia, and Yemen, who are outside the United States and who did not have a valid visa at 5 p.m. Eastern Standard Time on January 27, 2017, and do not have a valid visa on the effective date of this order are not eligible to enter the United States while the temporary suspension remains in effect. Thus any individual who had a valid visa either on January 27, 2017 (prior to 5:00 PM) or holds a valid visa on the effective date of the Executive Order is not barred from entry."

The section 3(a) scope provision defines the group that is subject to the new entry bar starting November 17, 2017. Read inversely, it seems to indicate that an individual who meets one of the following criteria will by definition not be subject to the bar:

  • An individual who is inside the United States on the effective date of Section 2(c); or
  • An individual who is outside the United States on the effective date of Section 2(c), but had a valid visa as of that date; or
  • An individual who is outside the United States on the effective date of Section 2(c), but has a valid visa as of that date

Also remember that individuals who have "a credible claim of a bona fide relationship with a person or entity in the United States" are currently protected from enforcement of the 90-day ban, even if they do not fall into these categories.

Exceptions

Sections 3 and 12 of Executive Order 13780 establish the following exceptions, which should now be applied to individuals who do not have "a credible claim of a bona fide relationship with a person or entity in the United States." Individuals who fall into any of the categories listed in the section 3(b) Exceptions are not subject to the entry bar, and can continue to travel to and from the United States as usual.

Section 3(b) - Exceptions to the entry bar

(b) Exceptions.  The suspension of entry pursuant to section 2 of this order shall not apply to:

(i)  any lawful permanent resident of the United States;

(ii) any foreign national who is admitted to or paroled into the United States on or after the effective date of this order;

(iii) any foreign national who has a document other than a visa, valid on the effective date of this order or issued on any date thereafter, that permits him or her to travel to the United States and seek entry or admission, such as an advance parole document;

(iv) any dual national of a country designated under section 2 of this order when the individual is traveling on a passport issued by a non-designated country;

(v) any foreign national traveling on a diplomatic or diplomatic-type visa, North Atlantic Treaty Organization visa, C-2 visa for travel to the United Nations, or G-1, G-2, G-3, or G-4 visa; or

(vi) any foreign national 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 so, the entry bar will also not apply to the following individuals:

  • U.S. lawful permanent residents (holders of a valid Form I-551 (green card) or temporary I-551 stamp)
  • Dual citizens of one of the 6 countries and the United States (such individuals are always considered U.S. citizens)
  • Dual citizens of one of the 6 countries and another country not on the list of 6, who will enter the United States on the basis of a valid passport issued by the country not on the list of 6
  • The following nonimmigrants -
    • NATO nonimmigrants,
    • C-2 travelers to the United Nations, and
    • G-1, G-2, G-3, or G-4 nonimmigrants (working for an international organization)
     
  • Asylees and refugees already admitted to the United States
  • Individuals who been granted -
    • withholding of removal,
    • advance parole, or
    • protection under the Convention Against Torture
     
  • Any foreign national who is admitted to or paroled into the United States on or after the effective date of Section 2(c)

Waivers

Individuals who are citizens of one of the 6 countries who are not exempt by definition from the bar, who do not fall within one of the above-listed exceptions, or who do not have "a credible claim of a bona fide relationship with a person or entity in the United States" under the June 26, 2016 Supreme Court decision, would be subject to the 90-day entry bar, 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.

(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.

Unanswered questions and continued need for guidance and interpretation

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

The U.S. Supreme Court's June 26, 2017 decision to partially stay the preliminary injunctions on the 90-day travel ban contains an important exception that upholds the injunctions for individuals "who have a credible claim of a bona fide relationship with a person or entity in the United States." To constitute a bona fide relationship with a U.S. entity, the Court states that "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 (e.g., F-1, M-1, or J-1 student)
  • Workers who accept an offer of employment from a U.S. employer (e.g., H-1B, O-1, TN)
  • Lecturers invited to address an American audience

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.

Some implementation questions

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. The Supreme Court decision adds a new factor that must now be weighed: whether the applicant for a visa or admission to the United States has a "bona fide relationship with a U.S. entity" that is "formal, documented, and formed in the ordinary course, rather than for the purpose of evading EO–2."

  • A student or 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 admission offer and issuance of a Form I-20 or DS-2019 as the formal documentation of that relationship.
  • 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.

The actual mechanics of how the agencies will implement the Supreme Court decision have yet to be seen. There are still some gray areas, for example:

  • Will there be a difference in treatment between individuals who had the requisite relationship with a U.S. entity before the Supreme Court decision v. those who enter into that relationship at some point in the future?
  • Will a principal applicant's relationship adequately serve as the basis for his or her dependents?
  • Will it be more difficult to establish the bona fide relationship in petition-free categories such as TN?
  • Will the training and guidance provided to consular and immigration officials be adequate to properly apply the Supreme Court decision in their decisions?
  • What avenues of relief will be available to individuals who are denied a visa or admission on the basis of the ban, if they believe they should be exempt from the ban?

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.

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.