June 28, 2017
After several months of legal uncertainty, the Supreme Court has agreed to evaluate the constitutionality of President Trump’s travel and refugee ban. During the first session of the October 2017 term, the Supreme Court will hear a combination of two important cases, Trump v. IRAP and Trump v. Hawaii, which have been key in the refugee and travel ban litigation. In the meantime, the Supreme Court has partially removed restrictions which previously impeded the enforcement of the travel and refugee ban. The travel ban will take effect on June 29, 2017 for a 90-day period, affecting some foreign nationals who do not currently have legal status and who cannot demonstrate a bona fide relationship with a person or entity in the United States.
The ban, in its current form, affects most significantly foreign nationals from one of the six listed countries (Iran, Libya, Somalia, Sudan, Syria, and Yemen) who are applying for tourism-based visas and refugees. The Supreme Court also indicated that if refugees are able to prove a bona fide relationship and have completed the existing vetting process described by the Department of State, they may be admitted into the United States even if the 50,000 person refugee cap has been reached.
Those who have already been granted legal status in the United States are exempt from the travel restrictions placed by President Trump’s executive order. This includes currently valid immigrant or nonimmigrant visa-holders, lawful permanent residents, individuals who have already been granted asylum or admitted as refugees, those traveling on advance parole, and individuals who have been granted withholding of removal. Additionally, diplomats and dual nationals are also exempt.
If you fall into any of these categories, you may leave and enter the United States freely without having to demonstrate a bona fide relationship with a person or entity in the United States, even if you are from one of the six countries listed in the travel ban (Iran, Libya, Somalia, Sudan, Syria, and Yemen). It is not yet clear what these measures mean for individuals who are in the process of seeking asylum or refugee status in the United States.
If you do not fall into any of the above categories, and you are from one of the six listed countries, you may need to demonstrate a bona fide relationship with a person or an entity in the United States. For personal relationships, “a close familial relationship is required.” The Court has not defined the definition of a “close familial relationship”, although it has provided examples of qualifying relationships, including a spouse and mother-in-law. It is uncertain if more distant relationships would also apply.
Relationships with entities in the United States are more broadly defined. The Supreme Court indicates that “the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading.” This means that you must provide evidence that proves your relationship with the entity in the United States, and that the reason for this relationship must not be simply to evade the restrictions set by the travel ban. Types of qualifying relationships might include employment-based visas, student visas, as well as more temporary stays such as the B-1 business tourism visa, often used by foreign guest lecturers. Individuals claiming an exception to the travel ban who do not have a bona fide relationship with a person or entity in the United States will need to seek a waiver of the ban along with their visa application.
Please contact an immigration attorney for specific information related to your individual circumstance. Most immigration cases are fact-specific, and this general information may or may not apply to you based on your current status and immigration history. This blog post does not constitute legal advice and does not substitute a consultation with an attorney.