June 30, 2017

Airports, Borders and Consulates: Longer Delays, More Scrutiny, Extreme Vetting and Travel Ban 2.0 Updates

Summer travel is in full swing as we approach the Fourth of July holiday weekend. This year foreign nationals need to be prepared for stricter scrutiny, longer wait times at consulates, and delays at airports and borders. Some foreign travelers — especially those from Iran, Libya, Somalia, Sudan, Syria and Yemen who cannot prove a “bona fide” relationship with a person or entity in the U.S. — will not be allowed to enter the U.S. This is based on the recent U.S. Supreme Court ruling allowing a portion of the Trump administration’s travel ban to be enforced while the U.S. Supreme Court reaches a final decision on the constitutional issues surrounding the March 6, 2017 Executive Order (EO-2) as discussed in the recent decisions by the 4th Circuit Court of Appeals and the 9th Circuit Court of Appeals. In addition, summer 2017 is expected to bring longer delays in visa processing with extra scrutiny and extreme vetting, as well as longer delays and additional screening when returning to the U.S. with new aviation security measures recently announced by the Department of Homeland Security.

Background on Travel Ban 2.0 Under March 6, 2017 Executive Order

On March 6, 2017, the White House issued a new version of the Presidential Executive Order protecting the Nation from Foreign Terrorist Entry into the United States (Travel Ban 2.0) and revoked the January 27, 2017 Executive Order issued by the White House as of the effective date of the new order, March 16, 2017.

Travel Ban 2.0 banned entry into the United States by nationals from Iran, Libya, Somalia, Sudan, Syria and Yemen for a 90-day time period. It was only applicable to those foreign nationals of the designated countries who were outside of the U.S. on the effective date of the order, did not have a valid visa as of 5:00 p.m. EST on January 27, 2017, and did not have a valid visa on the effective date of this order.

The following exceptions applied to the nationals of the six banned countries:

  • Any lawful permanent resident of the United States
  • Any foreign national who is admitted to or paroled into the United States on or after the effective date of the order
  • Any foreign national who has a document other than a visa, valid on the effective date of this order or issued on any date thereafter, that permits him or her to travel to the United States and seek entry or admission, such as an advance parole document
  • Any dual national of a country designated under section 2 of this order when the individual is traveling on a passport issued by a non-designated country
  • Any foreign national traveling on a diplomatic or diplomatic-type visa, NATO visa, C-2 visa, or G-1, G-2, G-3 or G-4 visa
  • Any foreign national 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

Travel Ban 2.0 included a detailed list of circumstances when a waiver might be applicable. These waiver examples are very similar to the examples raised by the U.S. Supreme Court in its recent ruling, including close family contacts and business obligations.

Court cases were quickly filed, and the March 6 Executive Order was enjoined prior to its March 16, 2017 effective date. Litigation progressed quickly and decisions were reached by both the 4th Circuit Court of Appeals in Trump v. International Refugee Assistance Project and the 9th Circuit Court of Appeals in Trump v. Hawaii by early June. Although using different reasoning, both courts found that the 90-day suspension in the March 6, 2017 Executive Order was unconstitutional. The United States filed petitions for certiorari in both cases, and asked the Supreme Court to stay the lower courts’ injunctions pending a decision on the merits of the appeal.

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U.S. Supreme Court Ruling Allows Partial Enforcement of Travel Ban 2.0

On June 26, 2017, the U.S. Supreme Court granted the United States’ petitions for certiorari and partially stayed the lower courts’ injunction in Trump v. International Refugee Assistance Project and Trump v. Hawaii. The Court ordered that until it issues its decision on the merits of the government’s appeal, the lower courts’ injunctions barring enforcement of the Executive Order are stayed in part. The Court ruled that the injunctions continue to apply (and the March 6 Executive Order may not be enforced) as to individuals who have a bona fide relationship with a person or entity in the U.S., but the injunctions are stayed (and the March 6 Executive Order could then be enforced) as to foreign nationals who lack such a relationship.

“Bonafide Relationship” With Person or Entity in the U.S.

Several examples of a “bonafide relationship” were provided by the U.S. Supreme Court, including family relationships, a job offer, speaking engagements and a relationship with a university. Such a bona fide relationship would need to be documented and would not apply to those whose purpose was to evade the travel ban provisions. The decision specifically emphasized the following:

“For individuals, a close familial relationship is required. A foreign national who wishes to enter the United States to live with or visit a family member, like Doe’s wife or Dr. Elshikh’s mother-in-law, clearly has such a relationship. As for entities, the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading EO–2. The students from the designated countries who have been admitted to the University of Hawaii have such a relationship with an American entity. So too would a worker who accepted an offer of employment from an American company or a lecturer invited to address an American audience. Not so someone who enters into a relationship simply to avoid §2(c): For example, a nonprofit group devoted to immigration issues may not contact foreign nationals from the designated countries, add them to client lists, and then secure their entry by claiming injury from their exclusion.”

Trump v. IRAP, 582 U.S. ___ (2017), p. 12

Further Guidance from DHS and DOS for Implementation of “Bona Fide Relationship”

Immediately after this ruling by the Supreme Court, the Department of Homeland Security and Department of State began working on guidance regarding what would be sufficient for the bona fide relationship for implementation on the night of June 29, 2017. Initial guidelines sent to U.S. embassies and consulates and CBP officials indicated that applicants must prove a relationship with a parent, spouse, child, adult son or daughter, daughter-in-law, son-in-law or sibling, including step-siblings and other step-family relations in the U.S. Left off this guidance were fiances/fiancees, grandparents, grandchildren, aunts, uncles and cousins. Later guidance issued during the evening of June 29 expanded the list of family to fiances/fiancees. Grandparents and grandchildren were still left off the list. Government guidance also stated that workers with offers of employment from a company in the U.S. and lecturers addressing a U.S. audience would be exempt from the ban. Hotel arrangements were not sufficient under the initial guidance.

According to DHS:

  • The temporary suspension of entry applies, with limited exceptions, only to foreign nationals from Sudan, Syria, Iran, Libya, Somalia and Yemen, who are outside the United States as of June 26, who did not have a valid visa at 5 p.m. EST on January 27, and who do not have a valid visa as of 8 p.m. EDT on June 29.
  • Visas that have been issued by the Department of State prior to the effective date of the Executive Order — June 29 at 8 p.m. EDT — are to be considered as valid for travel and seeking entry into the United States unless revoked on a basis unrelated to the March 6 Executive Order. Persons from the six countries presenting themselves for entry with a valid, previously issued visa and who meet other universally applied entry requirements will be admitted.
  • The Executive Order’s Travel Restrictions do not apply to:
    • Lawful permanent residents
    • Any foreign national admitted to or paroled into the United States on or after June 26, 2017
    • Non-Immigrant visa classifications: A-1, A-2, NATO 1 though NATO 6, C-2, C-3, G-1, G-2, G-3 and G-4
    • Any foreign national 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 or protection under the Convention Against Torture
    • Any foreign national who has a document other than a visa, valid on June 26, 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 an advance parole document
    • Aliens who present at the port of entry boarding foils, including YY or ZZ boarding foils, or transportation letters, including those documents issued to follow-to-join asylees
    • Any dual national of Iran, Libya, Somalia, Sudan, Syria and Yemen who is traveling on a passport issued by a country other than one of those six countries
    • Any national who has obtained a waiver pursuant to the terms of the EO or any individual covered by the portion of the injunction not stayed by the Supreme Court’s decision, i.e., “foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States”
    • Any individual seeking admission as a refugee who, before 8 p.m. EDT on June 29, 2017, was formally scheduled for transit by the Department of State. After 8 p.m. EDT on June 29, 2017, if a first-time refugee is issued travel documents, those documents are evidence that the refugee has been cleared for travel and the EO will not apply.

Government officials are now enforcing the provisions of the March 6 Executive Order per the Supreme Court ruling and the follow-up guidance released. In a new motion filed in federal court on Thursday, the State of Hawaii is arguing that the guidance issued by the Trump administration is too narrow of a view of what family relationships qualify under the scope of the bona fide relationship exception as outlined by the U.S. Supreme Court. It is expected that other cases will also be brought with same or similar arguments against the Trump administration that the ruling by the Supreme Court issues on June 26 is not being properly followed.

Although the travel ban only applies to individuals from the six countries listed above, these new provisions will cause delays, backlogs and more scrutiny for all travelers coming into the U.S. Even travelers not from Iran, Libya, Somalia, Sudan, Syria and Yemen must be prepared to have all of their valid immigration documents on hand to allow for readmission and to expect additional questioning, searching of electronic devices and social media accounts, and longer delays.

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Extreme Vetting at U.S. Embassies and Consulates

On March 6, 2017, President Trump directed the State Department to implement additional processes and procedures to ensure proper scrutiny and “extreme vetting” was properly being conducted during the visa interview process for nonimmigrant and immigrant visas and all overseas U.S. embassies and consulates. On May 4, 2017, the State Department issued an emergency notice for approval of additional questions for consular officers to ask visa applicants subject to the new “extreme vetting” process.

Form DS-5535 has been developed for consular officers to use when an applicant will be subjected to “extreme vetting.” Based on recent information from the State Department, some consulates are having applicants subjected to additional extreme vetting complete DS-5535 while others are asking questions directly from the form during the personal interview. Form DS-5535 requests the following information in addition to what is already provided in the standard DS-160 form:

  • Travel history during the last 15 years, including source of funding for travel
  • Address history during the last 15 years
  • Employment history during the last 15 years
  • All passport numbers and country of issuance held by the applicant
  • Names and dates of birth for all siblings
  • Names and dates of birth for all children
  • Names and dates of birth for all current and former spouses, or civil or domestic partners
  • Social media platforms and identifiers, also known as handles, used during the last five years
  • Phone numbers and email addresses used during the last five years

Once the information is compiled, the consular officer is instructed to send a cable to the State Department for further security clearance similar to the process that the consulates use for TAL (Technology Alert List) security checks. Once a decision is reached, the consulate is then notified on whether or not the visa can be issued. It is anticipated that these “extreme vetting” cases will add to an already high volume with the State Department and will only add to increased wait times for all clearances.

At this time, the State Department has indicated that “extreme vetting” will be limited to a small number of cases. However, since this is only in the initial stages, we will continue to see how many cases will be subjected to extreme vetting along with additional delays across the board with nonimmigrant and immigrant visa processing. With unfilled positions at the State Department, and more staff needed at many busy consulates, foreign nationals and their employers must be prepared for such delays during these busy summer travel months that are historically already busy.

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New Aviation Security Measures Introduced

On June 28, 2017, DHS Secretary Kelly announced new aviation security measures for flights and passengers traveling into the U.S. from international locations. In his remarks rolling out these new measures, Secretary Kelly stated that through his discussions with international partners, industry leaders and other stakeholders, it was time for the United States to raise the global baseline of aviation security. He emphasized that new proactive measures must be put in place so that the U.S. is not playing catchup with ISIS and other terrorist threats. These new aviation security measures will be applied to ALL commercial flights coming into the U.S. from abroad and will include enhanced screened of electronic devices, more thorough scrutiny and vetting of passengers and other measures to mitigate against attacks. More airports will also become pre-clearance locations and the government is making it very clear that if someone does not cooperate, there will be a ban on bringing electronic devices or suspension of flights to the U.S. Although DHS is warning of additional screening of persons and property, there are no specific changes at this time for items allowed in carry-on and checked baggage. DHS reports that the following will be affected by these new aviation security measures:

o Countries: 105

o Airports: 280 (approximate number as it will vary based on seasonal airports)

o Airlines: 180

o Average daily flights: 2,100

o Passengers: 325,000 average daily

There is no specific timeline yet in place. The government indicates that over the next several weeks and months that DHS/TSA will work with aviation stakeholders on implementing the new security measures. This means ALL travelers coming into the U.S. are likely to face additional questioning, screening of electronic devices and many delays as these new processes are implemented.

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Conclusion

Although summer travel brings summer fun, summer travel this year will also bring longer lines, more delays and stricter scrutiny of all foreign national travelers. Companies and their foreign national employees, business visitors, and other travelers must be ready for these immigration changes and challenges which are just starting. These changes are just the beginning, and we will bring your more travel and security updates as they are released by the Trump administration.

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