On June 26, 2017 the Supreme Court ruled that a limited version of the 90-day Travel Ban contained in President Trump’s Executive Order 13780 could go into effect. The limited Travel Ban went into effect on June 29, 2017. Persons from one of the six designated countries (Iran, Libya, Somalia, Sudan, Syria and Yemen) who cannot establish a pre-existing bona fide relationship to a close U.S. family member or U.S. employer, educational institution or other entity (or who cannot show that they are exempt from the ban or secure a waiver of the ban), are prohibited from entering the United States until the Travel Ban expires on September 27, 2017. In its ruling, the Supreme Court mentioned some relationships that would qualify but the Court did not provide a complete list of acceptable close family or entity relationships.
Following the Supreme Court decision, U.S. government agencies, including the Department of State (DOS), issued guidance about which “close” family relationships would be considered sufficient to allow admission into the U.S. The guidance limited the allowable family relationships to parent (including parent-in-law), spouse, fiancé, adult son or daughter, son-in-law and sibling (whether whole or half, and including step relationships).
Following on the heels of the Supreme Court decision and DOS guidance, the restricted qualifying family relationships (and entity relationships, in the case of refugees) were challenged in federal court in Hawaii. On July 13, 2017 the U.S. District Court for the District of Hawaii issued a ruling regarding the definition of “close familial relationship” as that phrase was used in the Supreme Court’s decision. The District Court ruled that the administration’s definition of “close family relationship” was unjustifiably narrow, and that grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts and uncles, nephews and nieces, and cousins are also included in the definition of “close familial relationship.” With regard to refugees, the Court ruled that refugees who have relationships with refugee service organizations or those that are part of the Lautenberg program would not be banned.
The Justice Department has appealed the Hawaii District Court decision to the Supreme Court.
Following the July 13th Hawaii court decision, the DOS issued updated guidance confirming that if otherwise approvable, consular posts will issue visas to visa applicants who can demonstrate one of the acceptable relationships, as expanded by the Hawaii District Court.
The DOS also clarified that those applicants who applied for a visa and were refused on the basis that their U.S. family relationship was not “close” enough may re-apply if they can provide information that the relationship meets the expanded definition.
We will continue to update our clients and readers as this issue is evolving rapidly.