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How the Muslim Ban Will Work Beginning July 29

The State Department has issued guidance on the limited Muslim Ban based on President Trump’s second executive order (E.O.) on entry of persons from six Muslim-majority countries. It goes into effect tonight. We only received this guidance a few hours ago, but I want to explain what it says as succinctly as possible.

The people covered by the E.O. are citizens and nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen. The suspension of entry in the E.O. “does 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,” according to the State Department. In other words, people from the six countries covered by the E.S. who have a visa by 8:00 p.m. on June 29 are not subject to the ban.

All other individuals from the six countries will be screened to see if they are banned for the next ninety days from entering the United States or not. Those with a “close family” relationship to a U.S. person or entity will be exempt from the ban. People who are applying for entry to the United States under the immigration categories for “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) are exempt from the E.O.” as are their dependents, according to the Department of State.

The memo from the State Department describes what the “close family” relationship is that exempts someone from the ban. “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.

This means that Americans citizens will not be able to have a beloved grandmother join them at important family events, for at least the next three months. It also means that the special visas allowing the fiancés of U.S. citizens to come to the U.S. for the wedding ceremony will not be issued to anyone from the six countries. Americans will have to go to Syria now to marry a Syrian fiancé. [Note: Since this article first appeared, the Trump administration decided to exempt fiances from the ban.]

The other group exempted from the ban are those with a relationship to a United States “entity.” The State Department says that a scholar coming to give a lecture would qualify for the exemption as having a connection to a U.S. entity, but a tourist with tickets for Disneyland would not. Here is the text from the memo on this:

A relationship with a “U.S. entity” must be formal, documented, and formed in the ordinary course rather than for the purpose of evading the E.O.  A consular officer should not issue a visa unless the officer is satisfied that the applicant’s relationship complies with these requirements and was not formed for the purpose of evading the E.O.  For example, an eligible I visa applicant employed by foreign media that has a news office based in the United States would be covered by this exemption.  Students from designated countries who have been admitted to U.S. educational institutions have a required relationship with an entity in the United States.  Similarly, a worker who accepted an offer of employment from a company in the United States or a lecturer invited to address an audience in the United States would be exempt.  In contrast, the exemption would not apply to an applicant who enters into a relationship simply to avoid the E.O.:  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 inclusion in the E.O.  Also, a hotel reservation, whether or not paid, would not constitute a bona fide relationship with an entity in the United States.

The State Department also explains that there will be waivers available for those who fall within the ban. To qualify for a waiver, a person will have to show that 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. While many people will be able to prove (a) and (b), few will be able to show that it is “in the national interest” to come to the U.S. to visit relatives or shop at the Mall of America.

While the Muslim Ban that goes into effect tonight is significantly narrower than the previous ban, it is still a pernicious branding of Muslims as dangerous to the United States. This new ban will not lead to mass detentions at JFK or summary deportations. It will, however, be played out in the six countries as routine denials of visa applications. This “out of sight” Muslim Ban should not be “out of mind” for anyone dedicated to religious equality. 

Pat Young is an attorney at CARECEN on Long Island.

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