Co-authored by Amalia J. Gemelas, summer associate, and Dana Rifai, partner

Details

On June 26, 2017, the United States Supreme Court granted a partial stay of the injunctions issued for sections 2(c), 6(a) and 6(b) of Executive Order 13780 (E.O. II). As a result, the 120-day suspension of the U.S. Refugee Admissions Program (USRAP) and the temporary 90-day travel ban for foreign nationals seeking entry into the United States from: Iran, Libya, Somalia, Sudan, Syria, and Yemen were implemented on June 29, 2017.

But, what does this mean for nationals from these six countries who wish to come to the United States?

Well, that depends on what relationship the national has with a U.S. citizen or entity and what their purpose is for seeking entry. Foreign nationals of the designated countries may be exempted from Section 2(c) of E.O. II, if they have a bona fide relationship with a U.S. citizen or entity. To resolve questions about E.O. II, the U.S. Department of State (DOS) and Department of Homeland Security (DHS) issued FAQs identifying what is considered a “close familial relationship” to satisfy the bona fide relationship requirement.  At first, DOS provided a narrow definition of what kind of relationship would be “close family.” However, at the end of the first day, DOS issued a revised entry to its FAQ’s to include “fiancés.”

After recent litigation in the United States District Court in Hawaii, the FAQ’s have been revised, yet again, to include grandparents, grandchildren, aunt/uncles, nieces/nephews, and cousins in the list of family members that qualify as a “close familial relationship.” Thus, foreign nationals seeking entry into the U.S. to visit family members listed in the DOS guidance will likely be exempt from Section 2(c), while those coming for tourism will not. For nationals seeking exemption based on their relationship with a U.S. entity, the DOS guidance is clear that the relationship may not be formed to evade the executive order, and must be “formal, documented, and in the ordinary course.” (Examples: students of a U.S. university, nationals accepting a job at a U.S. Company, or nationals with a contractual business relationship . . . etc.)

Under Section 6(a) regarding the 120-day suspension of USRAP, similar standards apply. The refugee must have a bona fide relationship with a person or entity in the United States. DOS guidance has provided that V93 applicants joining their spouse will clearly meet the close family standard. An asylee or refugee joining a child as a V92 applicant will be unaffected by E.O. II. If a refugee meets these criteria, they cannot be excluded form entry, even if the 50,000 cap provided in section 6(b) of E.O. II has already been reached or exceeded.

Nationals from the designated countries that do not qualify for exemption may be issued a waiver by a Consular Officer if: denying the waiver would cause undue hardship, the national would not threaten national security, and their entry would be in the national interest.

As a result E.O. II, no visas issued before June 29, 2017 will be revoked, and the U.S. Consulate will continue to process visa applications and hold visa interviews. Visa applicants from the six designated countries should continue to attend their scheduled interviews and be prepared to state why they qualify for exemption or a waiver.

Summary

1. People can be exempted if visiting someone with whom they have a close familial relationship as determined by the U.S. Department of State.
2. If a refugee meets the criteria they cannot be excluded from entry, even if the 50,000 cap has already been reached or exceeded.
3. Even if nationals from the designated countries do not qualify, they may be issued a waiver by a Consular Officer if they meet the correct criteria outlined above.
4. No visas issued before June 29, 2017 will be revoked.
5. Visa applicants from the six designated countries should continue to attend their scheduled interviews and be prepared to state why they qualify for exemption or a waiver.