Modified “Travel Ban” Becomes Effective on June 29: What Clients Need to Know

By Tejas Shah and Daniel Kim - Franczek Radelet P.C.

June 29, 2017

As many who have been following recent news and our alerts are aware, the Supreme Court on Monday partially stayed injunctions by the Fourth Circuit Court of Appeals and Ninth Circuit Court of Appeals that blocked the revised version of President Trump’s travel ban from becoming effective. Based on the text of the relevant Executive Order, the restrictions became effective at 7:00 pm CST on June 29th. Below is a brief FAQ to help you understand how your employees, students, and other individuals bearing the nationality of one of the six affected countries could be affected.

1) What is the current status of the travel ban?

Answer: On Monday, the U.S. Supreme Court announced that it will hear oral arguments regarding the constitutionality of President Donald Trump’s March 6 “revised travel ban.” The Court also granted in part the Trump Administration’s request to stay the lower court’s preliminary injunction blocking the implementation of the travel ban. As a result, the travel ban is now in effect and applies to foreign nationals from the six affected countries except for those individuals who have a “bona fide relationship” with a United States citizen or entity.

2) Who is exempt from the travel ban?

Answer: The U.S. Supreme Court lifted the injunction with respect to “foreign nationals abroad who have no connection to the United States at all,” yet exempted from the ban those who have a “credible claim of a bona fide relationship” to a U.S. citizen or entity. For individuals, a close familial relationship such as a spouse, child, or parent, is sufficient, while a relationship with an entity requires that the relationship be formal, documented, and not simply formed for the purpose of evading the travel ban.

The Court provided certain examples of who would have a bona fide relationship: a foreign national who wishes to enter to live with or visit a family member who is a U.S. citizen; students from the banned countries who have been admitted to a U.S. based University; a foreign worker who has accepted an employment offer with an American company; or a lecturer invited to address an American audience.

3) Who is not exempt from the travel ban?

Answer: The Court noted that foreign nationals who enter a relationship with a U.S. citizen or entity simply to avoid the travel ban will not be exempt. Further, the Court stipulates that organizations that represent refugees from the banned countries cannot simply add individuals to their client list to secure entry into the United States. Accordingly, a tourist from the six banned countries who lacks any connection whatsoever with the United States or a refugee not already working with a nonprofit organization to gain entry to the United States will not be exempt from the travel ban. It is also unclear whether prospective students, individuals traveling to the United States for business development, and other categories of travelers could be impacted.

4) Will implementation of this directive result in revocation of any existing visas?

The Department of Homeland Security has indicated that it does not intend to revoke any existing visas, even if the individual is a national of one of the six affected countries. Those individuals holding visas would be considered exempt under the Supreme Court’s guidance and will not generally be placed in secondary inspection upon arrival in the United States, provided they satisfy all other entry requirements.

5) If visas aren’t supposed to be revoked, how will the travel ban be implemented?

Typically, the State Department acting through its Consulates will make the initial determination of whether a traveler to the United States would have the bona fide relationship now required to be exempt from the travel ban.  In rare cases, other agencies such as the Department of Homeland Security will also make this determination.

A leaked cable from the State Department includes some guidelines as to the outer limits of what the Trump administration defines a bona fide relationship to be. These guidelines are likely to continue evolving.

6) Is any further litigation over this travel ban expected?

Yes, early indications are that there will be continuing litigation. Given the somewhat subjective nature of the Supreme Court’s directive, and notwithstanding the illustrative examples they have provided, it is expected that challenges to the executive branch’s interpretation of the “bona fide” relationship will be filed.