Understanding EB-5 Outcomes from the Supreme Court’s Ruling on the “Travel Ban”

Issuance of new order:

Following the U.S. Supreme Court’s ruling on President Trump’s executive order 13780, “Protecting the Nation From Foreign Terrorist Entry Into the United States,” often called the “travel ban”, the Department of State has released guidance pertinent to a variety of visas, potentially creating new implications for EB-5.

Under the new guidance, the Department will not cancel previously scheduled visa application appointments. A consular officer will determine whether an applicant from one of the six designated countries (Iran, Libya, Somalia, Sudan, Syria, and Yemen) is exempt from the executive order. This determination will be based on the officer’s decision regarding whether the exemption is in the national interest, whether the applicant poses no national security threat to the United States, and whether denial of the visa would cause undue hardship.

Visas issued before the visa’s effective date will not be revoked pursuant to the order. So, if you have already had an EB-5 visa or Green card issued, you should be exempt from the effects of this executive order.

Furthermore, the executive order states that individuals whose visa was marked revoked or cancelled solely as a result of the original E.O. issued on January 27, 2017 (E.O. 13769) will be entitled to a travel document permitting travel to the United States, so that the individual may seek entry. If you find yourself in this situation you should contact the nearest U.S. embassy or consulate to request a travel document. We would also advise enlisting the help of an experienced attorney to ensure that you are following the correct process and maintain program eligibility.

If you are not exempted you still may qualify for exemption, according to the Department of State. If you are able to provide “a credible claim of a bona fide close familial relationship with a person in the United States or of a bona fide, formal, documented relationship with an entity in the United States that was formed in the ordinary course, to be exempted under the provisions of the E.O., or qualify for a waiver, before they can be issued a visa during the suspension.” Again, we would advise that any person seeking such exemption contact a lawyer, especially if you are applying for an EB-5 visa.