DOS Issues Cable Implementing Trump’s Travel Ban

June 29th, 2017

The US Department of State just issued its cable implementing Trump’s travel ban for foreign nationals from six Muslim-majority countries, which can be found at http://live.reuters.com/Event/Live_US_Politics/989297085.

The executive order (E.O.) ban will take effect at 8 pm tonight and will suspend the entry of, or visa issuance to, certain aliens of Iran, Libya, Somalia, Sudan, Syria and Yemen. The cable outlines the exceptions for those who have a bona fide relationship with a person or entity in the US and for another discretionary waiver based on a case-by-case basis.

The suspension of entry into the US will not apply to individuals who are inside the United States on June 29, 2017, who have a valid visa on June 29, 2017, or who had a valid visa at 8:00 p.m. EDT January 29, 2017, even after their visas expire or they leave the United States. The suspension of entry also does not apply to other categories of individuals, as detailed in the cable. No visas will be revoked based on travel ban. New applicants will be reviewed on a case-by-case basis, with consular officers taking into account the scope and
exemption provisions and the applicant’s qualification for a discretionary waiver.

Regarding the exemption of the ban for those with a bona fide relationship to a person or entity in the US, the cable states the following in item #10:

a.) Any applicant who has a credible claim of a bona fide relationship with a
person or entity in the United States. Any such relationship with a
“person” must be a close familial relationship, as defined below. Any
relationship with an entity must be formal, documented, and formed in the ordinary
course, rather than for the purpose of evading the E.O. Note: If
you determine an applicant has established eligibility for a nonimmigrant visa
in a classification other than a B, C-1, D, I, or K visa, then the applicant is
exempt from the E.O., as their bona fide relationship to a person or entity is
inherent in the visa classification. Eligible derivatives of these
classifications are also exempt. Likewise, if you determine an applicant
has established eligibility for an immigrant visa in the following classifications
— immediate relatives, family-based, and employment-based (other than certain
self-petitioning employment-based first preference applicants with no job offer
in the United States and SIV applicants under INA 101a(27)) — then the
applicant and any eligible derivatives are exempt from the E.O.

b.) Any applicant who was in the United States on June 26, 2017;

c.) Any applicant who had a valid visa at 5:00 p.m. EST on January 27, 2017, the day
E.O. 13769 was signed;

d.) Any applicant who had a valid visa on June 29, 2017;

e.) Any lawful permanent resident of the United States;

f.) Any applicant who is admitted to or paroled into the United States on or
after June 26, 2017;

g.) Any applicant who has a document other than a visa, valid on June 29, 2017, or issued
on any date thereafter, that permits him or her to travel to the United States
and seek entry or admission, such as advance parole;

h.) Any dual national of a country designated under the order when traveling on
a passport issued by a non-designated country;

i.) Any applicant travelling on an A-1, A-2, NATO-1 through NATO-6 visa, C-2
for travel to the United Nations, C-3, G-1, G-2, G-3, or G-4 visa, or a
diplomatic-type visa of any classification;

j.) Any applicant who has been granted asylum; any refugee who has already been
admitted to the United States; or any individual who has been granted
withholding of removal, advance parole, or protection under the Convention
Against Torture; and

k.) Any V92 or V93 applicant.

The cable defines “Close family” in item #11:

11. (SBU) “Close family” is defined as a parent (including
parent-in-law), spouse, child, adult son or daughter, son-in-law,
daughter-in-law, sibling, whether whole or half. This includes step
relationships. “Close family” does not include grandparents,
grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-laws and
sisters-in-law, fiancés, and any other “extended” family members.

Under item #14, the cable also lays out case-by-case basis when the applicant
demonstrates to the officer’s satisfaction that the following three criteria
are all met:

a.) Denying entry during the 90-day suspension would cause undue hardship;

b.) His or her entry would not pose a threat to national security; and

c.) His or her entry would be in the national interest.

It item #15, the DOS cable lists the following examples of circumstances in which
an applicant may be considered for a waiver, subject to meeting the three
requirements above. It instructs consular officers to first determine whether individuals are exempt from the executive order under standards described above, before considering the
availability of a waiver under the standards described in item #15. It then states:

Unless 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 circumstance
listed in this paragraph 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:

a.) The applicant has previously established significant contacts with the
United States but is outside the United States on the effective date of the
E.O. for work, study, or other lawful activity;

b.) The applicant 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;

c.) The applicant 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;

d.) The applicant is traveling for purposes related to an international
organization designated under the International Organizations Immunities Act,
traveling for purposes of conducting meetings or business with the United
States government, or traveling to conduct business on behalf of an
international organization not designated under the IOIA; or

e.) The applicant is a permanent resident of Canada who applies for a visa at a
location within Canada.