Advice for Postdocs Who are Foreign Nationals

 

Summary of the Revised Travel Ban and the Supreme Court’s June 26, 2017 Order

The President issued a revised travel ban in March 2017 which partially took effect on June 29, 2017 after the Supreme Court issued an order partially staying the travel ban; as a result, the ban should not prevent many of the foreign nationals otherwise subject to it to enter the USA. Pursuant to guidance issued by the Department of State (DOS) and the Department of Homeland Security (DHS) portions of the Executive Order are in effect and are being implemented. Below is a brief summary of the ban as it is being implemented.

  1. Issued on March 6, 2017, the revised travel ban replaced an earlier ban that had been struck down as unconstitutional by several federal courts. The revised ban includes the following provisions:
    • Section 2(c) suspends the entry of nationals from six Muslim-majority countries – Iran, Libya, Somalia, Sudan, Syria, and Yemen—for 90 days from the effective date of the order, June 29, 2017.
    • Section 3(c) provides for case-by-case waivers of the entry ban in § 2(c).
    • Section 6(a) suspends decisions on refugee applications and the travel of refugees to the United States for 120 days following the effective date. During this period, the Secretary of State is to review refugee processing and adopt additional procedures to ensure that refugees do not pose a security threat.
    • Section 6(b) limits refugee admissions for fiscal year 2017 to 50,000 and suspends any entries above that number.

  2. The following categories of nationals from the affected countries are not subject to the ban:
    • Individuals in the United States pursuant to a valid visa on June 26, 2017;
    • Lawful permanent residents;
    • Dual nationals traveling on a passport issued by a non-designated country;
    • Those admitted to or paroled into the United States on or after the June 29, 2017;
    • Those with a travel or entry document (such as an advance parole document), other than a visa, valid on June 29, 2017 or issued thereafter;
    • Those traveling on a diplomatic visa, North Atlantic Treaty Organization visa, C–2 visa for travel to the United Nations, or G–1, G–2, G–3, or G–4 visa;
    • Asylees, refugees already admitted to the United States, those granted withholding of removal, protection under the Convention Against Torture or advance parole.

  3. The Supreme Court’s ruling permits foreign nationals who are in possession of a valid visa or entry document to enter the United States if s/he has a credible claim of a bona fide relationship with a person or entity in the United States.
  4. The Court applied this same standard to the refugee provisions, thus, no one with a credible claim of a bona fide relationship to a U.S. person or entity should be prevented from traveling to or entering the U.S. due to the ban.

  5. DHS confirmed it would consult with the Department of Justice (DOJ) and Department of State (DOS) and provide “additional details on implementation”.
  6. The DOS and DHS guidance permits the following individuals to enter the United States:
    • Individuals from the six targeted countries who are not subject to (exempt) from the ban. (See above.)
    • Individuals from the six targeted countries traveling on a visa that is valid on or after June
      29, 2017.
    • Individuals from the six targeted countries who were present in the United States on June
      26, 2017, have a valid multiple-entry visa and plan to travel abroad.
    • Refugees from any country who were formally scheduled for transit prior to 8:00 p.m.
      EDT on Thursday, June 29, 2017.
    • Refugees from any country who are determined to be exempt under the Supreme Court’s decision or for whom DOS grants an individual waiver.
    • Family members of refugees who have been approved to follow-to-join refugees or asylees.

  7. Certain Visa classifications are exempt from the ban pursuant to DOS guidance because “a bona fide relationship to a person or entity is inherent in the visa classification.” DOS is treating these visa classifications as “exempt”.
    • Family- and employment-based (other than EB-1) immigrant visa applicants: DOS determined that all applicants for family- or employment-based immigrant visas have a credible claim to a bona fide relationship, except for applicants for an EB-1 visa and possibly some applicants for EB-4, EB-5 and SIV visas. These latter visa applicants will need to demonstrate either a bona fide relationship with a U.S. person or entity or be found eligible for a waiver.
    • Nonimmigrant visa applicants except for B, C-1, C-3, D, or I visa applicants: The State Department has determined that “a bona fide relationship with a person or entity in the United States … is inherent in the visa classification” for all applicants for nonimmigrant visas except the ones listed above. Thus, all F, H, J, K, L, M, O, P, Q, and R nonimmigrant visa applicants are considered exempt. Note that in its original guidance, DOS did not categorically exempt applicants for fiancé(e) visas. DOS subsequently revised its guidance by including K visas on the list of exempt classifications.

  8. An individual who falls within a visa classification that is not categorically exempt will be found exempt if he or she demonstrates a credible claim to a bona fide relationship with a U.S. person or entity.
  9. The Court did not define the term “bona fide relationship,” but did provide several examples of what would satisfy this standard. For individuals who seek to visit or live with a family member in the United States, a “close familial relationship is required.” The Court then pointed to the relationships of two of the plaintiffs—with a spouse and mother-in-law, respectively—as examples of such a close family relationship. With respect to an “entity,” the Court explained that “the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading the order.”
  10. DOS has construed “close familial relationship” very narrowly. DOS guidance indicates that only parents, mothers- or fathers-in-law, spouses, fiancé(e)s, children, adult sons or daughters and siblings (including half-siblings) are included. Under this guidance, grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers and sisters-in-law and any other family members are not considered to be “close” family members. A visa applicant’s relationship with any of the family members in the latter categories would not exempt them from the ban per DOS guidance. In order to receive a visa, these applicants would need to qualify for a waiver.

    Senior government officials stated that they drew the line with respect to what constituted “close” family members based upon the family-based visa preference categories in the Immigration and Nationality Act. However, the Supreme Court recognized that a relationship with a mother-in-law constituted a close family relationship. Relationships with in-laws do not convey any immigration benefits under the family-based visa system. Thus, the Court’s recognition of this relationship provides strong support that family members who are more distant than those recognized in the family preference categories should satisfy the standard.
  11. The Supreme Court made clear that a student who has been accepted at an American school would be exempt due to a relationship with a U.S. entity, as would a lecturer invited to address an American audience.
  12. Bona fide relationships established after June 26 should be recognized as long as the relationship is bona fide and not formed for the purpose of evading EO-2.
  13. The following groups of individuals are those most at risk of being found not to be exempt either because they do not have a relationship with a family member in the United States or because they do not have a “formal, documented” relationship with a U.S. entity that was “formed in the ordinary course” of business. If found non-exempt, these visa applicants would have to receive a waiver in order to be granted visas.
    • Tourists: Nationals of the designated countries traveling on B-2 visas who are not planning to visit “close family members”—as defined by the State Department35—in the United States or who are coming for other reasons (including sight-seeing).
    • Business travelers: Nationals of the designated countries traveling on B-1 visas for business conferences or other short-term, non-contractual business interactions will likely be subject to the travel ban. DOS has clarified that “a hotel reservation, whether or not paid, would not constitute a bona fide relationship with an entity in the United States.”36
    • Diversity Visa applicants: The State Department’s guidance suggests that “[b]ased on the Department’s experience with the DV program, we anticipate that very few DV applicants are likely to be exempt from the E.O.’s suspension of entry or to qualify for a waiver.”37
    • Certain specialized employment visa categories: Individuals applying for visas which do not require an employment offer from a US entity, including EB-1 visas, some EB-4 visas, and potentially EB-5 visas, may be subject to the travel ban if they cannot demonstrate a bona fide relationship.38

  14. DOS states that decisions on visa applications will be made pursuant to a three-step process:
    • First, the consular officer will determine whether the applicant is eligible for the visa for which he or she is applying.
    • Second, the consular officer will consider whether the applicant is exempt because the applicant has a credible claim of a bona fide relationship to a U.S. person or entity. If the applicant is exempt, the visa will be issued with an annotation stating “Exempt or Waived from E.O. 13780,” and the consular officer will enter a “clear case note” in the file stating “the specific reason why the applicant is exempt.” If the consular officer is unsure as to whether a person is exempt, the State Department has instructed the officer to “refuse the case under INA 221(g)” and then “request an advisory opinion from VO/L/A/ following current guidance in 9 FAM 304.3-1.”
    • Third, if the applicant is not exempt from the travel ban, the consular officer will consider whether the applicant qualifies for a waiver. If the consular officer determines that the applicant qualifies for a waiver, the visa will be issued with an annotation stating “Exempt or Waived from E.O. 13780,” and the consular officer will enter a case note in the file which “must reflect the basis for the waiver.” If the consular officer determines that the applicant does not qualify for a waiver, then the visa “should be refused” and the consular officer should request an advisory opinion from VO/L/A/.

  15. How will consular officers evaluate eligibility for the national interest waivers described in the Executive Order?

  16. Individuals from the six designated countries who are subject to the travel ban nevertheless may be granted a visa if the applicant “demonstrate[s] to the [consular] officer’s satisfaction … that denying entry during the suspension period would cause undue hardship, and that his or her entry would not pose a threat to national security and would be in the national interest.” All three criteria must be met. The executive order provides nine examples where waivers “could be appropriate,” specifically where:

    1. The foreign national has previously been admitted to the United States for a continuous period of work, study, or other long-term activity, is outside the United States on the effective date of this order, seeks to reenter the United States to resume that activity, and the denial of reentry during the suspension period would impair that activity;
    2. The foreign national has previously established significant contacts with the United States but is outside the United States on the effective date of this order for work, study, or other lawful activity;
    3. The foreign national seeks to enter the United States for significant business or professional obligations and the denial of entry during the suspension period would impair those obligations;
    4. The foreign national seeks to enter the United States to visit or reside with a close family member (e.g., a spouse, child, or parent) who is a U.S. citizen, lawful permanent resident, or noncitizen lawfully admitted on a valid nonimmigrant visa, and the denial of entry during the suspension period would cause undue hardship;
    5. The foreign national is an infant, a young child or adoptee, an individual needing urgent medical care, or someone whose entry is otherwise justified by the special circumstances of the case;
    6. The foreign national has been employed by, or on behalf of, the U.S. government (or is an eligible dependent of such an employee) and the employee can document that he or she has provided faithful and valuable service to the U.S. government;
    7. The foreign national is traveling for purposes related to an international organization designated under the International Organizations Immunities Act (IOIA), 22 U.S.C. 288 et seq., traveling for purposes of conducting meetings or business with the U.S. government, or traveling to conduct business on behalf of an international organization not designated under the IOIA;
    8. The foreign national is a landed Canadian immigrant who applies for a visa at a location within Canada; or
    9. The foreign national is traveling as a U.S. government-sponsored exchange visitor.

    The order provides no guidance as to how these waivers should be adjudicated, or how an applicant would demonstrate that his or her entry would be in the national interest. However, DOS has provided guidance on how the national interest waiver process will operate. First, DOS notes that some of the listed examples “are considered exemptions in light of the Supreme Court’s ruling.”

    Additionally, and significantly, consular officers are instructed that “[u]nless 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 the 9 examples specifically identified “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.”

    Applicants who do not fall within the waiver categories listed may nevertheless demonstrate to the consular officer that they deserve a waiver. If the officer believes that the applicant is eligible for the waiver, he or she must submit the applicant’s case to the Visa Office for consideration, and the Visa Office will reply “within two business days.”

Please note: This summary is a condensed and simplified version of a Practice Advisory issued by the American Immigration Council in Washington DC in June, 2017. It is not to be taken as legal advice for any particular person’s case, but is a general summary of the law as of June 29, 2017.