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Travel Ban Ruling by the Supreme Court: FAQ and Guidance for International Students, Professors and Academic Institutions

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On June 26, the U.S. Supreme Court decided to partially lift two injunctions that had been preventing implementation of President Trump's travel ban Executive Order (EO). Specifically, the Supreme Court ruled that the EO may take effect, but held that the travel ban may not be enforced against nationals of Iran, Libya, Somalia, Yemen, Sudan and Syria, and refugees from all countries if they have a "credible claim of a bona fide relationship with a person or entity in the United States."

The Supreme Court will hear arguments in October to determine the legality of the EO, but in the meantime, it is vital that international travelers to the U.S. understand the impact the order may have on their ability to apply for a visa or enter the country.

Because of the complexities involved, we have prepared the following guidance for U.S. universities to provide to their students, faculty and staff. Individuals who have questions or need further guidance are encouraged to contact their universities or legal counsel for assistance and to obtain the necessary documentation.

Will U.S. citizens or permanent residents be affected by the travel ban?

If you are seeking entry to the U.S. as a U.S. citizen, then you are not subject to the EO travel ban, irrespective of whether you are from a designated country, hold dual citizenship or hold a visa to one of the listed countries. Individuals entering the U.S. as lawful permanent residents, even if they are nationals of one of the listed countries above, are not subject to the travel ban.

Will our foreign students from the listed countries be able to use their existing F-1 visas to enter the U.S. and attend our university?

The Supreme Court reinstated the ban only for those individuals who "lack any bona fide relationship with a person or entity in the United States." This should mean that students who have a relationship or tie to a university or other academic/research institution will be able to travel. In fact, the Supreme Court specifically identified students admitted to a university as one example of a "bona fide relationship."

Our university plans to help students applying for F-1 student visas after the travel ban goes into effect. What should we tell students to expect during their visa interviews?

Applicants for U.S. visas from one of the affected countries should be prepared for potential delays in visa issuance and the possibility of visa denial. Applicants should also expect to address questions about their ties to the U.S. and relationships in the U.S. during the visa interview, and they will be required to present documentation to establish their "bona fide" ties. Some examples may include:

  • Evidence of tuition or financial aid payments
  • Acceptance/Admission letter with course/student enrollment verification
  • Birth certificate for children and marriage certificate for spouses of students
  • Student identification card with valid F-1 and I-20 for current students
  • Notarized letter from school Dean/President
  • Notarized letter from Designated School Officer (DSO)

Will students holding an unexpired F-1 visa in the United States, but from one of the listed countries, be able to travel internationally at this time?

There are no travel restrictions for visa holders who are nationals of one of the listed countries. However, in the abundance of caution, we would advise foreign nationals who are already in the United States to delay or limit international travel until the Supreme Court has made a final ruling on the legality of the EO.

Our university employs staff holding valid U.S. visas permitting them to work and engage in research. Are these individuals subject to the travel ban?

Current visa holders (L-1, H-1B, E-2 and other business visas) will be permitted entry into the United States, as U.S. employment is considered to constitute a "bona fide" relationship in the United States. Foreign nationals in this situation are exempt from the travel ban.

Other individuals not subject to the travel ban include the following:

  • A dual national traveling on a passport from a country that is not designated in the EO;
  • An applicant for adjustment of status (Form I-485) in possession of a valid advance parole travel document;
  • An individual previously granted asylum in the U.S.;
  • An individual who has been admitted as a refugee or has been formally scheduled as a refugee by the Department of State; or
  • A foreign national traveling on a diplomatic visa, North Atlantic Treaty Organization visa, C-2 visa for travel to the United Nations, or G-1, G-2, G-3 and G-4 visa.

Will the spouses and/or children of our university's international students and staff be subject to the ban?

The Supreme Court exempted foreign nationals coming to live with or visit family members; therefore, family members who have or are eligible for derivative work visas (F-2, H-4, etc.) should be exempt from the ban.

Will individuals planning on traveling to the U.S. for a business trip and/or holiday from one of the listed countries be subject to the travel ban?

Perhaps. An applicant for a B-1/B-2 visa for business or holiday must be able to demonstrate that they have strong ties to a U.S. entity or person. For business travel, applicants should be prepared to present an invitation letter from a U.S. entity or employer indicating the national is entering the U.S. to conduct business, attend a conference or otherwise engage in lawful business activities with a U.S. enterprise and that the relationship was formed in the ordinary course of business.

It is unlikely that a visa will be granted to a national of a designated country for the purposes of tourism or holiday. The visa applicant will need to demonstrate a close familial relationship to a person in the U.S. The Supreme Court recognized that individuals who wish to "visit a family member," such as a spouse or mother-in-law, have close familial relationships. The Department of State has clarified that a "bona fide relationship" exists within a nuclear family, including spouses, fiancés, children and siblings, and excludes aunts, uncles, grandparents and cousins. Individuals from the six designated countries who are not planning to visit close family members and who are coming for other reasons (such as sight-seeing and tourism) will very likely be barred from entering.

Is it possible to obtain a waiver from the travel ban?

The EO authorizes the issuance of discretionary waivers of the travel ban where the denial of entry into the U.S. would cause hardship (such as medical treatment), the foreign national's entry is in the national interest, and entry would not pose a threat to national security. However, the stringent criteria and lack of clear guidance on the application process indicates that waivers may be difficult to obtain.

Baker Donelson is closely monitoring the impact of the travel ban and will provide updates on implementation of the ban as additional information becomes available. Please contact Dilnaz Saleem or a member of Baker Donelson's Immigration Group regarding any questions on travel to the U.S. while the ban is in effect. 

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