On 6/26/17, the Supreme Court granted certiorari, consolidated the 4th and 9th Circuit cases, partially lifted the lower court injunctions, permitting the government to ban U.S. travel by those nationals of Iran, Libya, Somalia, Sudan, Syria and Yemen who do not have a credible claim of a bona fide relationship with a person or entity in the U.S., even though the Supreme Court will hear the merits of the case when it reconvenes in the fall.

Immediately after the court’s decision, the Department of State (DOS) and the Department of Homeland Security (DHS) both issued Frequently Asked Questions (FAQs) regarding the implementation of Executive Order on June 29, 2017. Here is the summary.

Summary of DOS Cable and FAQs Regarding Implementation of EO-2

• 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.
• Individuals exempt from the order:
  • Any applicant who has a credible claim of a “bona fide relationship” with a person or entity in the United States.
    • Any such relationship with a “person” must be a close familial relationship, as defined below.
    • Any relationship with an entity must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading EO 103780.
    • Eligible derivatives of principal visa applicants who are either deemed to be exempt from the EO’s suspension of entry or qualify for a waiver under the EO also receive the benefit of the exemption or waiver.

• • Any applicant who was in the United States on June 26, 2017;
  • Any applicant who had a valid visa at 5:00 p.m. EST on January 27, 2017, the day Executive Order 13769 was signed;
  • Any applicant who had a valid visa on June 29, 2017;
  • Any lawful permanent resident (LPR) of the United States;
  • Any applicant who is admitted to or paroled into the United States on or after June 26, 2017;
  • Any applicant who has a document other than a visa, valid on June 29, 2017, or issued on any date thereafter, that permits him or her to travel to the United States and seek entry or admission, such as advance parole.
• Bona Fide Relationship With a Person in the U.S. – 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 with an Entity in the U.S.: The DOS cable provides the following examples of a “bona fide relationship” to a U.S. entity that will qualify:
  • An I visa applicant employed by foreign media that has a news office based in the U.S.;
  • Students from designated countries who have been admitted to U.S. educational institutions;
  • A worker who has accepted an offer of employment from a company in the U.S.; or
  • Lecturer invited to address an audience in the U.S.
  • The cable indicates that the following scenarios will not constitute a bona fide relationship with an entity in the U.S.:
  • A nonprofit group who seeks out clients from the designated countries, adds them to their client list, and then claims injury from their inclusion in the EO.
  • An individual whose only tie to the United States is a hotel reservation, whether paid or not.
• 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: DOS has confirmed that no visas issued before the EO’s effective date of June 29, 2017 will be revoked pursuant to the Executive Order. Any individual whose visa was marked or cancelled solely as a result of the original EO issued on January 27, 2017 (EO 13769) will be entitled to a travel document permitting travel to the U.S., so that the individual may seek entry. Any individual in this situation should 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.
• Waivers: Individuals who are not exempt from EO-2’s suspension of entry to the United States may seek a waiver. The EO permits, and the DOS further confirms, that Consular Officers are permitted to grant waivers and authorize the issuance of a visas on a case-by-case basis, if the applicant demonstrates to the Officer’s satisfaction that all of the following three criteria are met:
  • Denying entry under the 90-day suspension would cause undue hardship;
  • His or her entry would not pose a threat to national security; and
  • His or her entry would be in the national interest. “Unless the adjudicating consular officer has particular concerns about a case that causes the officer to believe that that issuance may not be in the national interest, a determination that a case falls under [any of EO-2’s criteria for when a waiver “could be appropriate”] is a sufficient basis for concluding a waiver is in the national interest. Determining that a case falls under some of these circumstances may also be a sufficient basis for concluding that denying entry during the 90-day suspension would cause undue hardship.”
  • Notably, Consular Officers are instructed to determine that if any individual falls under any of EO-2’s criteria for when a waiver “could be appropriate”, that individual should be granted a waiver. Specifically, the cable states:
• Refugees: The U.S. Refugee Admissions Program (USRAP) is suspended for 120 days, except for cases where an applicant has a credible claim of a “bona fide relationship” with a person or entity in the United States. The “bona fide relationship” test set forth by the Supreme Court to establish whether one has a qualifying with a person or entity in the United States is the same for a refugee as it is for a nonimmigrant, immigrant, or diversity visa applicant.

Summary of DHS FAQs Regarding Implementation of EO-2

• Foreign national from one of the six designated countries who was present in the U.S. on June 26, 2017, who was admitted on a single-entry or a multiple-entry visa will not be subject to EO-2 when applying for a subsequent visa.
• Foreign national from one of the six designated countries who was present in the U.S. on June 26, 2017, but whose visa will expire during travel abroad, will not be subject to EO-2 when applying for a new visa in order to return to the U.S.
• A U.S. lawful permanent resident who is a citizen of one of the designated countries and who is a member of the Trusted Traveler Program will not be subject to membership revocation based on the EO-2.
• The EO does not apply to refugees who were formally scheduled for transit prior to 8pm EDT on Thursday, June 29, 2017.

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