The U.S. government’s travel ban on would-be visitors from 6 Muslim-majority countries goes into effect tonight June 29, 2017, the Supreme Court decided this week. If you have a grandparent or grandchild in the U.S. you’re out of luck if you want to visit them after that date – for the next 90 days at least – if you’re from Iran, Libya,Somalia, Sudan, Syria, and Yemen. If you already have a visa you’re not affected. Importantly, the Supreme Court said the government can proceed with part of Trump’s controversial Executive Order aka travel ban for now and the court will hear the case in the fall. This reversed the rulings of lower courts.
Here’s where Trump’s grandchildren come in. The court said the travel ban “may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.” including refugees. Who has a bona fide relationship? Students who have been accepted by a U.S. university meet the test; others do too.
For family members, the court said the applicant must have “a “close familial relationship” to meet the “bona fide relationship” standard. So of course the legal question is who has a close familial relationship which meets the bona fide relationship requirement. On June 28 the State Department issued guidance which said:
“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.
Where did they get this definition? The list is similar – not identical – to the persons who can be sponsored for green card (immigrant) visas by U.S. citizens. The State Department said they used the Immigration & Nationality Act (INA) definition of family as their basis for that, in addition to some other language from the ruling, including a parent-in-law. Grandparents cannot sponsor their grandchildren for green cards; most of the other persons on the “no” list can’t either. But U.S. citizens can sponsor their fiancés for special K-1 fiancé(e) visas. Fiancé(e)s are generally treated as close relatives if not by that exact phrase.
But in other circumstances the government does consider grandparents and grandchildren as close family members, though they don’t use that exact wording. For example, I represent many people who apply for “humanitarian reinstatement” of their green card petitions. If the original petitioner (sponsor) dies while the foreign national (applicant or beneficiary) is still waiting for a visa (the line takes 25 years for some), the petition is automatically revoked or terminated. But in some cases the foreign applicant can apply for the petition to be reinstated or revived. One of the requirements is that the applicant must have a “substitute sponsor” who takes the place of the original sponsor and takes financial responsibility for the applicant. Only certain persons can be a substitute sponsor: a spouse, parent, mother-in-law, father-in-law, sibling, child, son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, grandchild, or legal guardian. The idea is the U.S. government wants the substitute sponsor to have a close relationship with the applicant – no aunts, uncles, cousins, or nieces and nephews.
So if the tables were turned and Donald Trump were a Libyan national wanting to visit the U.S. to attend his grandchild’s wedding, he now can’t apply for at least 90 days because he doesn’t have a “close familial relationship” with his grandchild. Or, if he and Melania happened to divorce and he became engaged to a Yemeni national (stranger things have happened), she wouldn’t be eligible to apply for at least 90 days either. Wow, wouldn’t those situations inspire some Trumpian tweets.