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Executive Order on Travel Ban: Who is Affected?


Tuesday, August 1, 2017

On January 27, 2017, President Trump signed Executive Order 13769 (EO-1) “Protecting the Nation from Foreign Terrorist Entry into the United States,” barring admission to the U.S. of all people with non-immigrant or immigrant visas from seven countries (Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen) for 90 days.  It also barred all refugees from all nations for 120 days, and placed an indefinite ban on refugees from Syria.
 

Due to its numerous legal challenges, on March 6, 2017, President Trump revoked EO-1 and issued Executive Order 13780 (EO-2).  EO-2 reinstated the travel ban on the entry of nationals from Iran, Libya, Somalia, Sudan, Syria and Yemen.  The second version of the order suspended immigration from the same aforementioned nations, but removed Iraq from the list, removed the indefinite ban on Syrian refugees, and allowed for entry by those already in possession of a valid visa to enter the U.S., no matter their origin.  However, the revised Executive Order was also met with legal challenges, the first of which took place on March 7, 2017, with Hawaii filing a request for a temporary restraining order to halt the ban before it took effect.  On March 15, 2017, U.S. District Judge Derrick Watson issued a temporary restraining order preventing certain sections of the order from going into effect, and on March 29, 2017, Judge Watson extended his order blocking the ban.  In their decision, issued June 12, 2017, the Ninth Circuit partially upheld Judge Watson’s injunction.
 

The legal challenges to EO-2 culminated in the United States Supreme Court issuing a partial stay of the lower court injunctions.  On June 26, 2017, the U.S. Supreme Court indicated that it would hear two cases challenging the Executive Order during the first session of the October 2017 term, and in the interim, temporarily allowed the ban to be reinstated, but only for travelers and refugees from Iran, Libya, Somalia, Sudan, Syria and Yemen without ties to the United States.  The Supreme Court ruled that EO-2 may not be enforced against foreign nationals with a “credible claim of bona fide relationship with a person or entity in the United States.
 

The Supreme Court specified that a relationship with a U.S. entity must be “formal, documented and formed in the ordinary course, rather than for the purpose of evading EO-2” and specified the following examples of such a relationship:
  • Students admitted to U.S. institutions;
  • Workers who accepted an employment from an American company; and/or
  • A lecturer invited to address an American audience.

Guidance issued by the U.S. Government defined “close familial relationship” to include “parent, spouse, fiancé, child, adult son or daughter, son-in-law, daughter-in-law, sibling, whether whole or half, and including step relationships.”  On July 13, 2017, the U.S. District Court for the District of Hawaii issued a ruling which broadened the definition of “close familial relationship” to include grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts and uncles, nephews and nieces, and cousins.  On July 14, 2017, the Department of State issued a cable instructing diplomatic posts to immediately use the expanded definition when adjudicating cases. The DOS further clarified that cousins are limited to first-cousins, and for all relationships, half or step status is included (e.g. half-brother or step-sister).  Most recently, on July 19, 2017, the U.S. Supreme Court issued an order which upheld, in part, the U.S. District Court for the District of Hawaii’s ruling, which expanded the definition of “close familial relationship.”


A detailed account of the legal challenges to these Executive Orders is beyond the purview of this article, however, for the benefit of our clients, we have summarized some of the salient information that may pertain to travelers.
 

At present, the Executive Order does not apply to:
  • U.S. Citizens;
  • Lawful Permanent Residents (Green Card Holders) regardless of nationality;
  • Citizens from countries not listed in the Executive Order (i.e. if you are from a country other than Iran, Libya, Somalia, Sudan, Syria, or Yemen);
  • Any foreign national with a valid travel document, other than a visa, permitting travel and entry or admission to the United States i.e., advance parole document;
  • Any foreign national with a valid visa as of June 29, 2017 - the Department of State has confirmed that no visas issued prior to this date will be revoked, but as a precaution, visa holders from one of the six restricted countries should bring evidence of ties to a U.S. family member or U.S. entity;
  • Employees of U.S. companies and international students enrolled at U.S. academic institutions; and/or
  • Dual Nationals of one of the six countries affected by the travel ban travelling, or applying for a visa using a passport issued by an unrestricted country, and holding a valid visa, if required.

Citizens of Iran, Libya, Somalia, Sudan, Syria or Yemen should bring evidence demonstrating ties to a U.S. family member or entity when applying for a U.S. visa and entering the U.S., including:
  • Documents establishing relationship with a relative in the U.S.;
  • Letter of acceptance or evidence of enrollment at a U.S. university (such as a valid Form I-20);
  • Contract of employment and pay statements from a U.S. employer; and/or
  • Immigration documents, including U.S. visa and green card.

Clients should note that implementation of the travel ban will continue to cause delays and longer wait times for travelers and visa applicants.  We will do our utmost to keep our clients informed as this event develops.  In the meantime, for specific questions pertaining to your personal situation, please contact the SIL attorney with whom you have been working, or for more general inquiries, please email us at info@sostrinimmigration.com
 

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