November 28, 2021

Volume XI, Number 332


Travel Ban – A Quick Update

The Supreme Court’s decision on June 26 to take up the travel ban cases this fall, and in the meantime partially lift the injunction on the President’s travel ban, has created renewed uncertainty for certain travelers. Statements by the Departments of State and Homeland Security have brought some clarity, though many remain confused.

Here is what you need to know if you are an affected traveler, or are working to help affected travelers:

Nationals of six countries – Affected travelers include nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen. Dual nationals (e.g., British Iranians) are exempt, as are U.S. Citizens and permanent residents. Moreover, travelers with a bona fide relationship to the U.S. will also be admitted (more on the meaning of bona fide below).

Refugees – In addition to nationals of the six countries, admission of all refugees, regardless of their origin, has been suspended, unless the applicant has a bona fide relationship to the U.S.

Prospective Ban – The implementation of the travel ban is prospective only. Those who were issued visas or were approved for refugee admission prior to June 29 may enter the U.S. regardless. Similarly, those who are already in the U.S. face no threat of removal as a result of the order.

For those seeking to apply for a new visa, the following would apply:

The meaning of Bona Fide Relationship – A lot of confusion has been expressed about the meaning of having a “bona fide” relationship with the U.S., which is the Supreme Court’s criterion for obtaining an exception to the ban. Essentially, the Court and the Trump Administration have made clear that there are two types of such bona fide relationships – professional and personal.

On the professional side, travelers otherwise subject to the ban may enter the U.S. if they have a documented professional reason to do so. These include an F-1 student visa, a work visa for U.S. employment, an invitation to speak at a professional conference, or other legitimate professional reasons to come to the U.S.

On the personal side, travelers must demonstrate a close family relationship to the U.S. in order to obtain a visa to come here. Specifically, travelers with parents (including parents-in-law and step-parents), spouses, fiancés, children (including children-in-law and step-children), or siblings (including step-siblings) in the U.S. will be admitted. However, relatives such as grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-law and sisters-in-law, or other extended family members will not qualify an individual to receive a visa.

Temporary – It bears noting that, by the terms of the President’s executive order, the travel bans are temporary, in order to allow the government to evaluate security procedures. The pause on entry of individuals from the six countries is for 90 days starting June 29. The pause on refugee admission will last 30 days longer – for 120 days. This means that at least one of the bans will have expired by the time the Supreme Court hears arguments in the case, and both will likely have expired before the Court issues a decision, potentially rendering any such decision moot before it is issued.

The Future – Although the current bans are temporary, the executive order contemplates the possibility that they will be replaced by new, reconfigured, more permanent bans, depending on the outcomes of the 90- and 120-day reviews. So, we will have to wait until the fall to see what the next chapter of this saga will bring.

Copyright © 2021, Sheppard Mullin Richter & Hampton LLP.National Law Review, Volume VII, Number 186

About this Author

Jonathan E. Meyer, Sheppard Mullin, International Trade Lawyer, Encryption Technology Attorney

Jon Meyer is a partner in the Government Contracts, Investigations & International Trade Practice Group in the firm's Washington, D.C. office.

Mr. Meyer was most recently Deputy General Counsel at the United States Department of Homeland Security, where he advised the Secretary, Deputy Secretary, General Counsel, Chief of Staff and other senior leaders on law and policy issues, such as cyber security, airline security, high technology, drones, immigration reform, encryption, and intelligence law. He also oversaw all litigation at DHS,...

Greg L. Berk Labor & Employment Attorney Sheppard Mullin Orange County, CA

Greg Berk is a partner in the firm’s Labor and Employment Practice Group. He leads the Firm’s immigration practice and is based in Orange County, California. He is a Certified Specialist in Immigration and Nationality Law by the State Bar of California Board of Legal Specialization. He is the author of Immigration Checklists and Practice Pointers – A  Desk Reference for Attorneys and HR managers. He has also taught immigration law at two college-level paralegal certification programs in California.

Areas of Practice

He has over 20 years of...