State Department Issues Guidelines for Revised Travel Ban

by Joseph McKeown

The State Department issued guidelines for the revised travel ban after the Supreme Court partially lifted orders blocking the revised ban earlier this week. The State Department announced that the partial ban would go into effect worldwide beginning at 8pm (EDT) on June 29, 2017. The travel ban affects nationals of six countries—Iran, Syria, Sudan, Libya, Somalia, and Yemen—but does not apply to any applicant who has a credible claim of a “bona fide relationship” with a person or entity in the US. Moreover, the ban does not apply to the following, among others:

  • US citizens;
  • Lawful permanent residents of the US;
  • Applicants with a valid visa as of 5pm EST on January 27, 2017;
  • Visa applicants who were in the US on June 26, 2017;
  • Applicants who had a valid visa on June 29, 2017;
  • Applicants admitted or paroled into the US on or after June 26, 2017;
  • Dual nationals of a country designated in travel ban when traveling on a passport of a non-designated country and, if needed, holding a valid visa;
  • Those who have been granted asylum; or
  • Those already admitted as refugees; 

In their ruling, the Supreme Court clarified that a "bona fide relationship" for individuals is a "close familial relationship" to a person in the US. The State Department further clarifies:

A close familial relationship is defined as a parent (including parent-in-law), spouse, fiancé, child, adult son or daughter, son-in-law, daughter-in-law, sibling, whether whole or half, and including step relationships.  ‘Close family’ does not include grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-law and sisters-in-law, and any other “extended” family members.

As for a "bona fide relationship" to a US entity, the Supreme Court notes the relationship must be “formal, documented, and formed in the ordinary course[.]” The State Department—which published a helpful Q&A on the implementation of the travel ban—further notes that they do not plan on cancelling previously scheduled visa application appointments.  A consular officer will make the determination in the interview whether an applicant otherwise eligible for a visa is exempt from the revised travel ban.

After the Supreme Court’s decision, the Department of Homeland Security (DHS) promised an implementation that would be done “professionally, with clear and sufficient public notice, particularly to potentially affected travelers, and in coordination with partners in the travel industry.” Senior administrative officials tell CNN that the revised ban’s rollout will go much smoother than the original one. "We expect business as usual," one official says. "We expect things to run smoothly—our people are well-prepared for this."

Although some immigration rights advocates who had challenged the travel ban in court believe the vast majority of those from the six banned countries seeking to enter the US to “visit a relative, accept a job, attend a university or deliver a speech” would still be able to do so, others are still troubled by the arbitrary definitions of “family” relationships. On Thursday, administration officials had determined that a fiancé(e) would not be considered a "bona fide" relationship, but later reversed that decision. "I predict more litigation as people challenge visa denials under these new instructions," Stephen Yale-Loehr, a law professor at Cornell, tells CNN. "Why can a stepsister visit the United States but not a grandmother?" Late yesterday, Hawaii has filed an emergency motion asking the federal district court judge who had originally blocked implementation of the travel ban to "clarify as soon as possible that the Supreme Court meant what it said" regarding “bona fide” familial relationships.

UPDATE: JULY 17, 2017: Derrick K. Watson, a judge of the Federal District Court in Honolulu, ruled late Thursday last week that the Trump administration’s temporary ban on travelers from six predominantly Muslim countries and refugees should not prevent grandparents and other close relatives of residents from entering the US. The judge also stated that refugees with ties to a resettlement agency committed to receiving them in the US was a bona fide “relationship” that made them eligible to enter the US.  

Judge Watson writes: “Common sense, for instance, dictates that close family members be defined to include grandparents. Indeed, grandparents are the epitome of close family members. The government’s definition excludes them. That simply cannot be.” As to refugees, he writes: “An assurance from a United States refugee resettlement agency, in fact, meets each of the Supreme Court’s touchstones. It is formal, it is a documented contract, it is binding, it triggers responsibilities and obligations, including compensation, it is issued specific to an individual refugee only when that refugee has been approved for entry by the Department of Homeland Security.” Attorney General Jeff Sessions strongly objected to Judge Watson’s ruling and said the Justice Department would appeal it directly to the Supreme Court.

UPDATE JULY 21, 2017: This week the Supreme Court upheld parts of Judge Watson's order that widened the definition of which nationals from the six Muslim-majority countries covered by the travel ban had “bona fide” relationships and were therefore eligible to travel to the US. The order leaves Judge Watson’s ruling which said that grandparents and cousins of a person in the US were eligible to travel; however, the Supreme Court blocked without comment another part of the order that said citizens with "formal assurances" from a US refugee resettlement agency should be able to enter. This case will now be sent back to the 9th US Circuit Court of Appeals.