Let's start from the beginning:
Trump's administration issued an Executive Order (EO) on January 27, 2017, 5 months ago, which imposed a 90 day suspension on the entry into the United States of immigrants and non-immigrants from the seven designated countries, excluding those travelling on diplomatic visas, NATO visas, U.N. transit visas, and international organisation visas.
The language was somewhat broad, which led to...
The Department of Homeland and Security (DHS) confirming on February 1st, 2017, that it does not apply to Lawful Permanent Residents (LPRs) with green cards, who have already been admitted into the US as an LPR (or have adjusted status). It appeared that those immigrant visas (green cards) that had not yet been issued, were revoked.
The Department of State (DOS) issued a news alert on February 2nd, 2017, confirming that travel for dual nationals from any country with a valid US visa in a passport of an unrestricted country is not restricted.
Section 5 of the EO also suspends the U.S. Refugee Admissions Program (USRAP) for 120 days and suspends the entry of all Syrian refugees indefinitely, until the President determines their admission would be in the national interest. DHS has stated that during the 120 days, it will “review screening procedures to ensure refugees admitted in the future do not pose a security risk” to the United States.
The Department of Justice (DOJ) indicated in a February 16, 2017 court filing that President Trump intends to rescind the January 27, 2017 Executive Order and issue a new order in its place (EO2).
On June 26, 2017, the U.S. Supreme Court granted certiorari (at least four of the justices have determined that the circumstances described in the petition are sufficient to warrant review by the Court) and consolidated two key cases in the travel and refugee ban litigation: Trump v. IRAP and Trump v. Hawaii. The case will be heard during the first session of the October 2017 term. In addition to granting certiorari, the Supreme Court granted a partial stay of the injunctions that had been preventing implementation of the travel ban.
What did the Supreme Court Say?
The court held that the EO may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the US, but that all other foreign nationals, are subject to the new EO2.
A Bona Fide Relationship with a Person in the United States: “For individuals, a close familial relationship is required.” The Court stated that 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.”
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 EO-2.” 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.
Who are Exempt from the Restrictions?
Lawful Permanent Residents, Asylees, and Others: EO-2 exempts from coverage LPRs, individuals who have been granted asylum, those already admitted as refugees, individuals travelling on advance parole, and those granted withholding of removal and/or CAT. All of these individuals 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: Also exempt from the EO-2 travel ban are individuals travelling on diplomatic and related visas and dual nationals travelling on a passport issued by a non-designated country. These individuals should still be permitted to travel freely without having to demonstrate a bona fide relationship with a person or entity in the United States.
What about our Clients?
Business Visas: The Court stated that a worker who has accepted an offer of employment from a U.S. company would have a bona fide relationship to a U.S. entity. What is not clear is whether individuals with employment-based visas that do not require a petitioning employer (EB-1, National Interest Waiver) would be able to demonstrate a relationship to a U.S. entity.
Family-Related Visas: The Court’s order is clear that individuals who “wish[] to enter the United States to live with or visit a family member” have close familial relationships. A spouse and a mother-in-law were included by the Court as examples of relationships that would qualify, and it should be argued that a fiancé would similarly qualify. It is unclear at this time if more distant relationships would qualify.
Students and Trainees: The Court stated that students who have been admitted to a U.S. university would have such a relationship. Presumably, the same would apply for vocational students and J-1 exchange visitors who would have a relationship to a U.S. program sponsor.
Visitor for Business (B-1): It is unclear at this time how individuals travelling to the United States for business conferences or other short-term, non-contractual business interactions will be treated,
Individuals Applying for Visas: It appears that 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.
A June 14, 2017 presidential memorandum directs the government to implement the travel ban “72 hours after all applicable injunctions are lifted or stayed with respect to that provision.” Therefore, we can expect the government to implement the Court’s decision tomorrow, on June 29, 2017.
In conclusion, we do not anticipate most of our clients being affected by this, but it highlights how US immigration is uncertain. It is more crucial now, more than ever, to speak with a US licensed Immigration Attorney regarding many immigration matters.
Please do not hesitate to contact our firm if you have any US immigration questions:
+44(0)203 102 7966