On June 29, 2017, the U.S. State Department began implementing President Trump’s new visa criteria based in Executive Order 13780. The revised criteria bars U.S. entry for 90 days, for citizens without prior connections to the United States from six Muslim-majority countries: Iraq, Syria, Iran, Sudan, Libya, Somalia and Yemen. Stemming from a highly publicized decision by the Supreme Court, the current preliminary injunction has been narrowed to allow only “foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States”. Current controversy revolves around the specific language, “bona fide relationship,” and the potential for its interpretation of federal courts and officials.
Bona Fide Relationship
On May 25, 2017, United States Court of Appeals for the Fourth Circuit upheld an injunction against enforcement of Executive Order 13780, titled “Protecting the Nation from Foreign Terrorist Entry into the United States”, which was an executive order signed by United States’ President Donald Trump on March 6, 2017. That order placed limits on travel to the U.S. from certain countries, and by all refugees who do not possess either a visa or valid travel documents. According to its terms, it revoked and replaced the original travel bar Executive Order 13769, which was issued on January 27, 2017.
International Refugee Assistance Project v. Trump, Case No. 17-1351 , was brought by six individuals and three organizations that that serve or represent Muslim clients or members, including the International Refugee Assistance Project, represented by lawyers from the National Immigration Law Center and the American Civil Liberties Union. In its ruling, the Court provided few examples of what a “bona fiderelationship” could mean, including close relatives of U.S. citizens, students admitted to U.S. universities, workers hired by U.S. companies, and lecturers invited to speak to U.S. audiences. However, the Court did not specify the criteria for “close relative”, leading to more questions of admissibility: is a fiancé, uncle, or grandparent considered a close relative?
In tackling this question, the Court affirmatively determined that a spouse and mother-in-law qualify as close relatives to the two plaintiffs respectively, John Doe #1 and Dr. Ismail Elshikh, who are at the center of the cases in controversy. International Refugee Assistance Project v. Trump, ___F. Supp. 3d ___, 2017 WL 1018235 (D Md., Mar. 16, 2017); Hawaii v. Trump, ___ F. Supp. 3d ___, 2017 WL 1167383 (D Haw., Mar. 29, 2017). Conversely, applicants who enter a relationship to specifically avoid the ban, such as foreign nationals listed on client lists of nonprofit immigration groups, may not claim such a close connection with U.S. citizens. Applicants entering into fraudulent marriages to create a close relationship with a U.S. citizen for this purpose will be denied on grounds of visa fraud.
As of June 28, 2017, the State Department has attempted to define “close relative” by issuing guidelines to all U.S. embassies and consulates. According to the guidelines, which take effect June 29, new applicants from the six specified countries must prove that they have a relationship with “parent, spouse, child, adult son or daughter, son-in-law, daughter-in-law, or sibling”, who is already in the U.S. Excluded from the “close relationship” status are: grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers- and sisters-in-law, fiancées/fiancés or other extended family members are not considered to be “close” relationships. It is unclear whether a relative who is “already in the U.S.” must be domiciled in a U.S. state, or can be simply visiting the country.
Additional directives point consular officers towards granting entry to applicants with “previously established significant contacts within the U.S.” These ties include: business and professional applicants that can show a legitimate and documented relationship with obligations in the U.S., infants, adopted children, and children in need of urgent medical care. Importantly, these new regulations may also negatively impact visa winners in the diversity lottery, as diversity lottery applicants traditionally do not possess existing ties to the U.S.
New visa applicants from Iran, Iraq, Libya, Sudan, Somalia, Syria and Yemen with no existing familial, business, or school ties within the U.S. are most likely to be denied. Previously scheduled visa applications and those with existing travel plans within the U.S. will not be impacted.
In light of the constant flux of court rulings and presidential remarks, President Trump’s travel ban brings no shortage of legal and political issues to the table. While lawyers will wrangle with issues of standing and mootness, any questions for the Court will remain unanswered until the Court reconvenes from its summer recess in October. On June 1, 2017, the Trump administration formally filed its appeal for the cancellation of the restraining order issued by United States District Court for the District of Hawaii that enjoined the government from enforcing several key provisions of the order (Sections 2 and 6). The Administration also requested that the Supreme Court allow the order to go into effect while the court looks at its ultimate legality later in the year.