Critical Dates and Times for Affected Foreign Nationals
The Department of Homeland Security press release published on Thursday, June 29 confirms that travel restriction provisions were officially in effect on June 29 at 8 P.M. EDT. Affected individuals from the following six countries include: Iran, Libya, Somalia, Syria, Sudan, and Yemen; Iraq is no longer included as a restricted country.
This implementation date is important because it represents the date by which foreign nationals outside the U.S. must have been issued a valid visa (or other valid travel document, per DOS) in order to be exempt from the travel restrictions (assuming no other exception applies).
Per DHS, the travel restrictions will apply to all foreign nationals from the six designated countries (and their derivatives) who:
Are outside the United States as of June 26, 2017; and
Did not have a valid visa at 5 PM EST on January 27, 17; or Did not have a valid visa as of 8 PM EDT on June 29, 17.
DHS also clarified that previously issued visas will not be revoked as a result of the policy, including those visas issued during the 72-hour implementation window following the Supreme Court’s decision but prior to the travel restriction’s implementation. Finally, persons holding a valid visa on June 29, whether single or multiple-entry, are eligible to re-apply for visas even after their current visa expires.
In addition to the specific carve-outs provided by E0-2 and the Supreme Court decision, DHS clarified that any individual seeking admission as a refugee who was formally scheduled for transit by DOS before 8 PM EDT on June 29, 2017 is exempt from the restriction; and after 8 PM on that day, any first-time refugees who are issued travel documents are deemed to be cleared for travel and are likewise exempt.
Finally, DHS explicitly stated that persons present in the United States (specifically those who were admitted to or paroled in) as of June 26, 2017 are exempt and will also be eligible to seek visas in the future, even while the travel restrictions are ongoing.
Defining “Close Family Relationship”
The Supreme Court decision exempted from the travel restrictions those foreign nationals who could demonstrate a credible, close family relationship to an individual in the U.S., but did not offer any insight into how that term should be interpreted. DHS listed a closed group of qualifying family relationships in its press release; permitting a group that is somewhat broader than what constitutes an “immediate relative” in standard immigration practice, but that is also much narrower than what most persons intuitively understand to be a close family relationship.
DHS will recognize all of the following relationships as “close family relationships” for purposes of the exception:
Adult sons or daughters
Sons- and Daughters-in law
Siblings (including half siblings)
Step relationships of the above.
DHS went further to state, explicitly, that the following relationships are not qualifying:
Aunts and uncles
Nieces and nephews
Brothers- and sisters-in-law
Any other “extended” family members not listed above.
Civil documents like birth and marriage certificates will presumably be enough to show that a close relationship exists without having to examine the bona fides of that relationship on a case by case basis.
Department of State Cable Provides Glimpse into Visa Issuance During the Term of the Travel Restriction
The DOS cable, which offers insight into the restriction’s implementation (but should not be construed as the agency’s official public guidance), states that persons seeking a nonimmigrant visa other than a B, C-1, D, I, or K will be exempt from the EO by virtue of their visa classification, which inherently establishes the requisite relationship to a U.S. entity. A similar approach will be taken with family-based visas where the qualifying relationship is inherent in the petition. This clarification signals DOS’s sensibleness in applying the exemption created by the Supreme Court, and places no further evidentiary requirements on applicants to qualify for the exemption. An applicant for an L-1A visa, for example, is deemed to have established the requisite relationship to a U.S. entity by virtue of the fact that an employer filed a petition on the foreign national’s behalf.
Likewise, employment-based immigrant visa applicants from one of the six countries will in most cases be able to rely on the visa classification itself, in tandem with a job offer, to establish a qualifying relationship to a U.S. entity. The DOS cable is careful to exclude self-petitioners lacking job offers from such automatic exemptions. For example, the EB-1 visa petition for persons of extraordinary ability permits individuals to self-petition, with or without a job offer from a U.S. company; these individuals will not enjoy the same treatment as their counterparts in other employment-based visa categories where U.S. employers are involved in the petitioning process. Presumably, such EB-1 visa applicants will be afforded an opportunity to evidence the requisite relationship to a U.S. entity by other means, and their eligibility for a visa and admission determined on a case-by-case basis.
The cable and other available resources further indicated the following:
Diversity Visa applicants from one of the six designated countries, including those scheduled for an interview before the restriction went into effect, must qualify for an exemption or waiver or will otherwise be refused a visa;
High-level government officials traveling on official business who do not qualify for an A or G visa (and are therefore not explicitly eligible for a waiver under EO-2) will likely be able to satisfy the “in the national interest” and “undue hardship” requirements by virtue of their title and qualify for a waiver, barring anything specific to their situation that gives rise to concern;
Department of State’s procedures if and when encountered by foreign nationals affected by the Ban.
Moving forward, visa interviews will still be scheduled for persons from the six designated countries, but applications will be adjudicated as follows:
First, consular officers will determine if the national is eligible for a visa in the ordinary course before reaching the exemptions and waivers of under EO-2.
If the foreign national qualifies for a visa but for the Travel Restrictions, officers will then determine if the national meets any of the exemptions or qualifies for a waiver, and deny or issue visas accordingly.