The Travel Ban Is in Effect, DOS and DHS Release FAQs to Address Concerns

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

On June 29, 2017, the U.S. Department of State (DOS) and the Department of Homeland Security (DHS) issued answers to frequently asked questions (FAQs) on the implementation of Executive Order 13780 (EO-2), which went into effect on June 29, 2017, at 8:00 p.m. Eastern time (ET) after the Supreme Court's recent opinion. A summary of the key points in the FAQs is below:

  • Clarification Regarding Individuals Subject to the Suspension of Entry: Foreign nationals from the six designated countries (Sudan, Syria, Iran, Libya, Somalia, and Yemen) who were outside the United States as of June 26, 2017; who did not have a valid visa at 5:00 p.m. Eastern Standard Time on January 27, 2017; and who did not have a valid visa as of 8:00 p.m. Eastern Daylight Time on June 29, 2017, are subject to EO-2.
  • Clarification Regarding Exempt Individuals: The agencies provided the following examples of individuals who are exempt from EO-2:
    • Foreign nationals with a “bona fide relationship” with a U.S. person or entity
    • Foreign nationals who held a valid multiple entry visa on June 26, 2017
    • Foreign nationals present in the U.S. on June 26, 2017, who depart and apply for a visa
    • Lawful permanent residents of the U.S.  
    • Dual citizens that present a passport from a non-designated country with a valid U.S. visa
    • Refugees formally scheduled for transit prior to 8:00 p.m. ET on June 29, 2017
  • Bona Fide RelationshipClose Familial Relationship: DOS defines a close family member as a parent (including parent-in-law), spouse, fiancé, child, adult son or daughter, son-in-law, daughter-in-law, or whole or half sibling (including step relationships). However, it does not include a grandparent, grandchild, aunt, uncle, niece, nephew, cousin, brother-in-law, sister-in-law, and any other “extended” family members.
  • Bona Fide Relationship–Employment-Based Nonimmigrants: DOS states that qualified applicants in employment-based nonimmigrant categories such as H, L, E, or other petition-based classifications are considered exempt from EO-2 as a bona fide relationship to a person or entity in the United States is inherent in the requirements of these visa classifications. Other business travelers, including B-1 applicants, will need to establish they are exempt based on a bona fide relationship or qualify for a waiver.
  • Immigrant Visa Applicants: Certain self-petitioning employment-based immigrant visa applicants and diversity visa applicants may be covered by EO-2 and will need to establish they are exempt based on a bona fide relationship or qualify for a waiver.
  • Visa Revocation: Foreign nationals from the designated countries will not have their valid U.S. visas revoked pursuant to the executive order. Any foreign national whose visa was marked, revoked, or cancelled due to the original executive order can contact the closest U.S. consulate to request a travel document.
  • Visa Appointments at U.S. Consulates Abroad: Consulates will not cancel previously scheduled visa interview appointments and will continue to accept visa applications from foreign nationals from the designated countries. Consular officers will make a case-by-case determination on whether a foreign national is eligible for the requested visa classification before deciding whether he or she is exempt from EO-2. If not exempt, consular officers will determine whether the foreign national would qualify for a waiver. Consular officers can grant waivers on a case-by-case basis if the foreign national demonstrates that his or her entry into the U.S. is in the national interest and will not pose a threat to national security, and that denying the visa would cause undue hardship. If the principal applicant qualifies for an exemption or waiver, qualified derivatives would also get such benefit.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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