“The students from the designated countries who have been admitted to the University of Hawaii have such a relationship with an American entity,” the Court explained in an unsigned order, referring to the lawsuit filed by that institution against the government. “So too would a worker who accepted an offer of employment from an American company or a lecturer invited to address an American audience.”
What will qualify as a “bona fide relationship” in practice is unclear. The State Department, which oversees the visa-application process at embassies and consulates throughout the world, is interpreting the Court’s language narrowly. According to a diplomatic cable obtained by multiple news outlets, applicable relationships will be 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.”
Other family ties will not qualify, even if they fall within what the Court described as a “close familial relationship.” The cable explicitly ruled out entry based on connections inside the United States if those relationships were with “grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-laws and sisters-in-law, fiancés and any other ‘extended’ family members.”
Shortly before the ban went into effect on Thursday, the state of Hawaii, which filed one of the original lawsuits on behalf of its higher-education system, filed an emergency motion asking a federal district court in Hawaii to clarify the Supreme Court’s order. Among the issues the state asked the court to resolve is whether close family members like grandparents and fiancés fell under the justices’ exception. Neither the court nor the Justice Department has yet responded to the motion.
Human-rights organizations quickly criticized the department’s guidelines as inadequate. “This guidance shows a cruel indifference to families, some already torn apart by war and horrifying levels of violence,” Naureen Shah, a senior director at Amnesty International USA, said in a statement. “It also defines close family relationships in a way that ignores the reality in many cultures, where grandparents, cousins, and in-laws are often extremely close.”
The ACLU, which is among the groups challenging the order at the Supreme Court, suggested the State Department’s interpretation did not conform to the justices’ standard. “The reported guidance does not comport with the Supreme Court’s order, is arbitrary, and is not tied to any legitimate government purpose,” Omar Jadwat, the director of the organization’s Immigrants’ Rights Project, said in a statement.
The Supreme Court’s modifications will remain in force until at least October, when the justices return from their summer recess and hear oral arguments in the case. Because the visa-application freeze is set to last 90 days, it’s possible those restrictions could lapse before the Court has an opportunity to consider them.