On Monday, June 26, 2017, the U.S. Supreme Court issued a decision on the two infamous “Travel Ban” cases, each of which involve challenges to President Trump’s Executive Order No. 13780, Protecting the Nation From Foreign Terrorists Entry into the United States.
The Supreme Court decided to hear the merits of the Travel Ban cases when it reconvenes in October 2017. In the meantime, the Court is allowing President Trump’s Administration to implement parts of the President’s 2nd Executive Order, initially issued on March 6, 2017, but subject to a nationwide preliminary injunction, issued by the U.S. District Court for the District of Hawaii, which was subsequently upheld by the 9th Circuit Court of Appeals in State of Hawaii v. Donald P. Trump. The nationwide injunction prevented the government from enforcing or implementing the following sections of the Executive Order:
- Section 2(c), which suspends the entry of Foreign Nationals from six (6) predominantly-Muslim Countries [Iran, Libya, Somalia, Sudan, Syria, and Yemen] into the United States for 90 days;
- Section 6(a), which suspends the refugee admissions program for 120 days; and
- Section 6(b), which caps the number of refugee entries for FY 2017 at 50,000.
The Supreme Court issued a narrow decision, ruling that the government can only enforce the travel ban against Foreign Nationals who do not have “a credible claim of a bona fide relationship with a person or entity in the United States.” The Court explained that this means that individuals from the six (6) countries will be permitted to enter the United States if they have a “close familial relationship” with someone already in the United States, or if they have a “formal, documented” relationship with an American entity formed “in the ordinary course” of business. However, the Court stated that such relationships cannot be established for the purpose of avoiding the travel ban. The government will likely begin applying the travel ban in this specified limited fashion on June 29, 2017 (in accordance with an Executive Order issued by President Trump on June 14th, amending the effective date of the travel ban to 72-hours following the Court’s issuance of stay or the lifting of the injunctions).
WHO WILL (LIKELY) BE ALLOWED TO ENTER THE UNITED STATES?
- Individuals who have valid Immigrant or Non-immigrant Visas issued on or before June 26, 2017.
These individuals are not included in the travel ban.
- Individuals with Visas coming to live or visit with family members.
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. The Court used both a spouse and a mother-in-law as examples of qualifying relationships, but it is unclear whether more distant relatives would qualify.
- Students who have been admitted to a U.S. College or University, Workers who have accepted offers of employment with a U.S. Company, and Lecturers invited to address an American audience.
The Court provided these three (3) examples of individuals who have credible claims of a bona fide relationship to an American Entity.
- Other Types of Business Travelers.
It is uncertain whether individuals with employment-based visas that do not require a U.S. Employer Sponsor will be able to demonstrate the requisite relationship with a U.S. Entity.
Most refugees processed overseas have family or other connections to the United States, including with Refugee Resettlement Agencies. The Court ruled that such individuals may not be excluded even if the 50,000 Cap on Refugees has been reached or exceeded.
WHO MAY HAVE DIFFICULTY IN ENTERING THE UNITED STATES?
- Individuals who form bona fide relationships with Individuals or Entities in the United States after June 26, 2017.
The Court’s decision is not clear whether it is prospective or retrospective only. Individuals who establish relationships with the United States to avoid the Travel Ban are barred from entering.
Nationals of the six (6) designated Countries who are not planning to visit family members in the United States and who are coming for other reasons (including sight-seeing) may be barred from entering.
More will become known as the U.S. Federal Immigration Agencies commence implementing President Trump’s Executive Order under the guidelines set forth by the U.S. Supreme Court.