• Updated Information and FAQs on the Reinstated Partial Travel Ban
  • August 8, 2017
  • As the Supreme Court lifted the injunction on the second Executive Order regarding the travel ban, questions abound regarding its implementation and how it will affect both visa issuance and entry into the United States. Visa issuance is overseen by the Department of State while entry into the United States is overseen by Customs and Border Protection.

    The Department of State issued guidance regarding visa issuance and clarified certain definitions and terms as they apply to implementation for visa adjudication as discussed in the Executive Order and the Supreme Court decision. The components listed in the Executive Order will go into effect at 8 p.m. EST on June 29, 2017, and for most U.S. consulates and embassies around the world, it will go into effect on June 30, 2017, when they open for business. The travel ban will remain in effect for 90 days, and does not apply to individuals who were inside the U.S. on June 29, 2017; who have a valid visa as of June 29, 2017; who had a valid visa as of 8 p.m. EST on Jan. 29, 2017, even after the visas expired and they departed the U.S.; and to those who qualify under the exemption or waiver, as will be detailed below.

    We anticipate the below to be most frequently asked questions, and we have broken them down into different categories to address concerns:

    Applying for a Nonimmigrant Visa

    • Can I still schedule an appointment if I hold a passport from one of the six countries?
      Yes, appointments will still be scheduled as any exemptions or waivers will be determined at the time of the interview.
    • What will the adjudication procedure be if I am applying for a nonimmigrant visa with a passport from one of the six countries?
      The officer will first determine if you are eligible for the visa. If you are, the officer will then move on to determine whether you qualify under the exemption, or if you qualify for a waiver (to be described in more detail below).
    • Are there any visa classifications that will automatically qualify under the exemption?
      Yes, nonimmigrant visa categories other than B, C-1, D, or I visas will be exempt as the applicant will automatically have proved the bona fide relationship via the visa classification (for example, L-1 and H-1B).
    • What happens if my application is denied?
      If your application is denied because you do not qualify under the exemption or a waiver, your denial will be annotated as a Section 212(f) denial.

    Applying for an Immigrant Visa

    • Can I still schedule an appointment if I hold a passport from one of the six countries?
      Yes, appointments will still be scheduled as any exemptions or waivers will be determined at the time of the interview.
    • What will the adjudication procedure be if I am applying for an immigrant visa with a passport from one of the six countries?
      The officer will first determine if you are eligible for the visa. If you are, the officer will then move on to determine whether you qualify under the exemption, or if you qualify for a waiver (to be described in more detail below).
    • Are there any immigrant categories that will automatically qualify under the exemption?
      Yes, immigrant visas are exempt automatically if it is for an immediate relative, is family-based, or is employment-based (unless a self-petitioner).
    • What happens if my application is denied?
      If your application is denied because you do not qualify under the exemption or a waiver, your denial will be annotated as a Section 221(g) denial.

    Applying for a Diversity Visa

    • Should I still attend my appointment that was scheduled prior to June 29, if the appointment falls after June 29, if I hold a passport from one of the six countries?
      Yes, appointments will still be scheduled as any exemptions or waivers will be determined at the time of the interview.
    • What will the adjudication procedure be if I am applying for a diversity visa with a passport from one of the six countries?
      The officer will first determine if you are eligible for the visa. If you are, the officer will then move on to determine whether you qualify under the exemption, or if you qualify for a waiver (to be described in more detail below).
    • What happens if my application is denied?
      If your application is denied because you do not qualify under the exemption or a waiver, your denial will be annotated as a Section 221(g) denial.
    • If I know I am not likely to fall under the exemption or qualify for a waiver, can I cancel my appointment?
      Because the Department of State anticipates that very few applicants will actually qualify under the exemption, the office will notify the applicants who hold a passport from one of the six countries and let them determine whether or not they wish to pursue their application.
    • Will appointments still be scheduled for nationalities from one of the six countries?
      Yes. Additional guidance will follow after the 90 day suspension to resume normal processing.

    How do I know if I am exempt based on the Supreme Court decision?

    • What is the basis for the exemption if I hold a passport from one of the six countries?
      Per the Supreme Court decision, an applicant who has a bona fide relationship with a person or entity in the United States will be exempt from the travel ban.
    • What qualifies as a bona fide relationship with a person in the United States?
      The relationship with the U.S. person must be a close familial relationship. This is defined as a parent (and parent-in-law), spouse, child, adult son or daughter, son-in-law, daughter-in-law, and sibling (whether whole or half). This also includes step-relationships. As noted- this does not include grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers/sisters-in law, and other extended family members. Please also note that the State of Hawaii filed an emergency motion with a Federal Court challenging the Department of State’s guidance on what qualified as a bona fide relationship. Hawaii claims that the government should not be able to enforce the bans against fiancés, grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of people currently living in the United States. The government has since amended its guidance and added fiancés to the list of types of people with a close family connection.
    • What kind of documents will I need?
      All documents showing the relationship: marriage certificates, birth certificates, and photos.
    • What qualifies as a bona fide relationship with an entity in the United States?
      This relationship must be formal, documented, and formed in the ordinary course and not to evade the Executive Order. This applies to nonimmigrant visa categories for workers and students. Other categories (such as lecturers coming in for one lecture) will be decided on a case-by-case basis, but it is important to establish a relationship with an entity in the U.S.
    • What kind of documents will I need?
      Documents showing the relationship to the U.S. entity, and that the applicant has a valid reason to be in the United States (as a student, worker, or visitor for business purposes). This includes approval notices, petitions, letters from the employer/school, and other related documents.
    • What will happen if I fall under the exemption?
      The consular officer will grant you visa application and the visa will be annotated: “Exempt or Waived from E.O. 13780.”

    Besides the Supreme Court decision on bona fide relationship, who else is not subject to the Travel Ban?

    The suspension of entry will not apply to the following individuals even if the person is a national of Iran, Libya, Somalia, Sudan, Syria, or Yemen:

    • An applicant who was in the United States on June 26, 2017;
    • An applicant who had a valid visa at 5 p.m. EST on January 27, 2017;
    • An applicant who had a valid visa on June 29, 2017;
    • A lawful permanent resident of the United States;
    • A foreign national who is admitted to or paroled into the United States on or after June 26, 2017;
    • Any foreign national who has a travel document other than a visa stamp that is valid on June 29, 2017, or any date afterwards that would permit travel into the United States;
    • A dual national of one of the six countries (Iran, Libya, Somalia, Sudan, Syria, or Yemen) but traveling on a passport not from one of the six countries;
    • Any foreign national traveling on a diplomatic or diplomatic-type visa, NATO visa, C-2 visa, or G-1, G-2, G-3, or G-4 visa;
    • Any foreign national who has been granted asylum; a refugee who has been admitted to the United States; or any person who has been granted withholding of removal, advance parole, or protection under CAT (Convention Against Torture).
    • A V92 or V93 applicant (asylee and refugee following-to-join spouse or children)

    If I do not qualify under any of the exemptions, can I apply for a waiver?

    The Executive Order includes provisions that will allow a foreign national holding one of the six passports to be granted a visa to enter the U.S., if he or she qualifies for a waiver. A consular officer may, in their discretion, decide on a case-by-case basis a waiver, if the person has demonstrated that:

    1. denying entry during this period would cause undue hardship;
    2. denying entry during this period would not pose a threat to national security; and
    3. it would be in the national interest to issue a visa to, or grant entry to, one whose entry would otherwise be suspended.

    If a consular officer issues a waiver to grant a visa, then that waiver will apply to the entry on the visa as well. Individuals in the following situations may qualify for a waiver:

    • The foreign national has significant contacts in the United States, but was outside the United States on the effective date of the Executive Order, for employment, studies, or other lawful activity.
    • The foreign national wishes to enter the United States for significant business or professional obligations, and denying the entry would hinder the obligations.
    • The foreign national is a young child or adoptee, a person needing urgent medical care, or whose entry is otherwise justified by the special circumstances.
    • The foreign national is traveling for meetings or business with the U.S. government representing an international organization designated under the International Organizations Immunities Act.
    • The foreign national is a Canadian permanent resident and who is applying for a visa within Canada.
    • The foreign national is a high-level government official traveling on official business and not eligible for the diplomatic visa (examples are governors and other officials).
    • Consular officers may deem a waiver permissible even if the applicant does not fall into any of the above categories, but still meet the three criteria and the Chief of Mission or Assistant Secretary of a Bureau supports the waiver. If the consular officer believes that all three criteria are met, the case can be submitted to the Visa Officer for consideration.

    Process for Refugees

    • The U.S. Refugee Admissions Program is suspended for 120 days, but does not apply to those who have a credible claim of a bona fide relationship with a person or entity in the United States.
    • Posts will not cancel any V92 or V93 applications.
    Guidance from Customs and Border Protection will be issued shortly, and Greenberg Traurig will publish FAQs on that matter as well.