Updated guidance on executive order restricting travel and entry into the United States by individuals from Iran, Libya, Somalia, Sudan, Syria and Yemen (‘Designated Countries’)

The March 6, 2017 Executive Order No. 13780 (“Executive Order”) was challenged in multiple lawsuits and multiple courts issued orders holding that the Executive Order was unlawful and temporarily stopping the Executive Order from going into effect. (The Executive Order was “stayed.”) The United States Supreme Court was then asked to both consider the validity of the Executive Order and allow the Executive Order to go into effect while the Court’s consideration of the validity of the Executive Order is pending.

On June 26, 2017, the United States Supreme Court issued a decision:

1. agreeing to consider the validity of the Executive Order during its October 2017 term; and
2. permitting the entry ban in the Executive Order to go into effect as to foreign nationals from Designated Countries “who lack any bona fide relationship with a person or entity in the United States;” and
3. continuing to stay the Executive Order with respect to foreign nationals from Designated Countries who “have a credible claim of a bona fide relationship with a person or entity in the United States.”

The Supreme Court noted that a close familial relationship is sufficient to establish that a foreign national from a Designated Country has a bona fide relationship with a person in the United States.  In guidance following the Supreme Court decision issued to officials who consider visa applications, the State Department defined “close family” as a parent (including parent-in-law), spouse, child, adult son or daughter, son-in-law, daughter-in-law, or sibling (whole or half), including step relationships. This definition explicitly excludes “extended” family such as grandparents, aunts, nephews, cousins, brothers-in-law, and fiances.

To establish that a foreign national from a Designated Country has a bona fide relationship with an entity, the Court noted that the relationship must be “formal, documented, and formed in the ordinary course, rather than for the purpose of evading” the Executive Order.

The Supreme Court identified three circumstances relevant to members of the University of California community that would qualify as a bona fide relationship with an entity in the United States:

1. a student from a Designated Country who has been admitted to a university;
2. a worker who has accepted an offer of employment from an American company; and
3. a lecturer invited to address an American audience.

The University cannot be certain how the federal government will interpret and implement the Supreme Court’s order. However, from the University’s perspective there is a strong argument that current students; current employees; people who have accepted admission or employment offers by the University but have not yet started; people who have been offered admission or employment by the University through ordinary University procedures; and even people who have applied to the University for admission or employment through ordinary University procedures all have a “bona fide relationship” with the University.

Further, even if a person does not have a bona fide relationship with an individual or entity in the U.S., he or she still may be eligible for a case-by-case waiver, as discussed in the March 6 guidance. An individual may be eligible for a waiver where: (1) denying entry would cause undue hardship; (b) the person’s entry would not pose a threat to national security; and (c) his or her entry would be in the national interest. Among other examples discussed in the March 6 guidance, needing urgent medical care in the U.S. is considered an undue hardship.

Note also that the Executive Order does not affect anyone who has a valid visa on June 29, 2017; who had a valid visa on January 27, 2017 (5 p.m.); or a document other than a visa enabling entry, such as advance parole, that was valid on June 29, 2017 or issued thereafter.

The University of California continues to welcome people of all backgrounds and nationalities, including foreign nationals from Designated Countries in any of these categories.

We continue to analyze the Executive Order and its impact on our students, faculty, scholars, employees and other community members. At this time, we recommend that foreign nationals from the six Designated Countries who are currently in the United States and who may continue to face future challenges to re-entering the United States during and/or after the temporary suspension, should consult with their immigration counsel before leaving the country.