On Monday, June 26 the U.S. Supreme Court, in a per curiam action, announced it will hear oral argument on the legal challenges to President Trump’s revised travel ban. In so doing, the Court partially reinstated the March 6, 2017 Executive Order (EO-2) that imposes a 90-day travel ban, and a 120-day suspension of the U.S. Refugee Resettlement program, on individuals from certain countries: Iran, Libya, Somalia, Sudan, Syria and Yemen. Portions of the travel ban will therefore remain in effect until arguments are heard by the Court this fall. A summary of the Court’s rulings is as follows:
Travel and Refugee Ban: The Court ruled that [the travel and refugee bans] 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.” However, all other foreign nationals, i.e., those without such a bona fide relationship-are subject to the provisions of EO-2.
Refugee Cap: The Court held that a refugee with a credible claim of a bona fide relationship with a U.S. person or entity may not be excluded, even if the 50,000 cap on refugees has been reached or exceeded.
Bona Fide Relationship with a Person in the United States: The Court noted the type of relationships that would qualify as bona fide, stating, “[f]or individuals, a close familial relationship is required.” The Court further stated that an individual who seeks to enter the United States to live with or visit a family member, such as a spouse or mother-in-law, “clearly has such a relationship.”
Bona Fide Relationship with an Entity in the United States: With regard to entities, the Court stated, “the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading EO-2.” The Court specifically stated that students who have been admitted to a U.S. university, a worker who has accepted an offer of employment from a U.S. company, or a lecturer invited to address a U.S. audience would have such a relationship.
The Court stated that a relationship with a U.S. entity or individual that was entered into for the purpose of avoiding the travel ban will not be recognized as bona fide.
Effective Date: A June 14, 2017 presidential memorandum directs the government to implement the travel ban “72 hours after all applicable injunctions are lifted or stayed with respect to that provision.” Therefore, we can expect the government to implement the Court’s decision on June 29, 2017.
On the same date, June 26, 2017, DHS issued a statement confirming that it would provide details on implementation after consultation with DOJ and DOS. DHS states that implementation “will be done professionally, with clear and sufficient public notice, particularly to potentially affected travelers, and in coordination with partners in the travel industry.” In the meantime, the Court’s ruling may be interpreted as narrow, impacting only a limited number of travelers, identified as follows:
Individuals Applying for Visas: It appears that individuals from the six designated countries who do not have a valid visa will be required to demonstrate a credible claim of a bona fide relationship with a person or entity in the United States during the visa interview. In the B-1 visa context, it is unclear at this time how individuals traveling to the United States for business conferences or other short-term, non-contractual business interactions will be treated. At the very least, such individuals should have evidence of a “formal, documented” relationship with a U.S. entity “formed in the ordinary course” of business.
Under the Court’s ruling, the following individuals should not be impacted, regardless of their country of origin:
Individuals with Currently Valid Visas: As noted in the EO-2, “Individuals [from the six affected countries] who currently hold a valid, unexpired visa may use the visa to travel to the United States.” Thus, an individual with a valid nonimmigrant or immigrant visa should be permitted to board a plane and present themselves for inspection at a U.S. airport or land port of entry.
Lawful Permanent Residents, Asylees, and Others Exempted from EO2: EO-2 exempts from coverage LPRs, individuals who have been granted asylum, those already admitted as refugees, individuals traveling on advance parole, and those granted withholding of removal and/or CAT. All of these individuals should be permitted to travel freely without having to demonstrate a bona fide relationship with a person or entity in the United States.
Diplomats and Dual Nationals: Also exempt from the EO-2 travel ban are individuals traveling on diplomatic and related visas [NATO, C-2, G-1, G-2, G-3, or G-4] and dual nationals traveling on a passport issued by a non-designated country. These individuals should still be permitted to travel freely without having to demonstrate a bona fide relationship with a person or entity in the United States.
Employment-based Visas (H, L, E, I, O, P, Q, R) and Employment-Based Immigrant Visas): The Court stated that a worker who has accepted an offer of employment from a U.S. company could demonstrate a bona fide relationship to a U.S. entity.
Family-Related Visas (K, V, and Family-Based Immigrant Visas): The Court’s order is clear that individuals who “wish to enter the United States to live with or visit a family member” have close familial relationships. A spouse and a mother-in-law were included by the Court as examples of relationships that would qualify, and it should be argued that a fiancé would similarly qualify. It is unclear at this time if more distant relationships would qualify.
Students and Trainees (F, M, J): The Court stated that students who have been admitted to a U.S. university would have such a relationship. Presumably, the same would apply for vocational students and J-1 exchange visitors who would have a relationship to a U.S. program sponsor.
Visitor for Business (B-1): The Court stated that a lecturer invited to address a U.S. audience would have a bona fide relationship to a U.S. entity. Visitor for Pleasure (B-2): As noted above, the Court recognized that individuals who wish to “visit a family member,” such as a spouse or mother-in-law, have close familial relationships.
The Court’s per curiam order, and the dissenting opinion written by Justice Thomas, is available here: