Immigration and Nationality Law Firm

On June 26, 2017 the United States Supreme Court entered an order in the cases of Trump, et al v. International Refugee Assistance Project, et al and Trump et al v Hawaii, et al. The order grants a partial stay of the injunctions that have prevented implementation of the Trump Administration’s Travel Ban. The Supreme Court will hear the case during the first session of the October 2017 term.  The purpose of this advisory is to highlight the immediate impact of the Court’s June 26, 2017 order.

Background of the Trump Administration’s Travel Ban Version 2

Two separate federal circuit courts had upheld nationwide federal district court orders prohibiting the enforcement of those portions of a revised Trump Administration executive order which sought to do the following:

  • Suspend entry of nationals from six designated countries (Iran, Libya, Somalia, Sudan, Syria and Yemen) for 90 days;
  • Direct the Secretary of Homeland Security to conduct a global review to determine whether the vetting process being used is adequate;
  • Suspend all decisions on refugee applications for 120 days;
  • Limit refugee entries for fiscal year 2017 to 50,000; and
  • Set an effective date of the executive order of March 16, 2017.

The Trump administration brought the Supreme Court appeal to prohibit the enforcement of the two injunctions.  The effect of the government winning its case would have been for the travel ban to fully go into effect.

Immediately following the Court’s order on June 26, 2017, the Trump Administration directed the government to implement the travel ban 72 hours after all applicable injunctions are lifted or stayed (i.e., June 29, 2017).

What the Supreme Court’s Decision Does and Does Not Do

In a decision joined by all nine justices, the Supreme Court issued a limited grant of the administration’s request for a stay and narrowed the scope of the injunctions.  In so doing, the Supreme Court order allows the government to ban the admission of all foreign nationals from the six countries who do not have,” … a credible claim of a bona fide relationship with a person or entity in the United States.”  This expressly includes a refugee with a credible claim of a bona fide relationship with a U.S. person or entity even if the 50,000 cap on refugees has been reached or exceeded.

Both proponents and opponents of the travel bans claimed victory, but the cases are far from over.   The Supreme Court’s order is only a partial response to the legal issues raised by the litigation.  Ultimately, we will not know what the Supreme Court thinks about the travel ban until after it hears oral arguments following arguments early in the Fall of 2017.

From their separate opinion, we do know that Associate Justices Thomas, Alito and the newest Justice, Gorsuch, have concluded that the executive orders were improperly enjoined by the lower courts and should be allowed to fully go into effect.

Individuals Who May Not Be Banned According to the U.S. Supreme Court’s Order

The Supreme Court Order says that close familial relationships and relationships with entities that are formal, documented and formed in the ordinary course, rather than for the purpose of avoiding the executive order, are still covered by the injunction and individuals in these classes may not be barred from entry even if they are nationals of the six named countries. The suspension of entry to the United States for foreign nationals of the six designated countries (Iran, Libya, Somalia, Sudan, Syria, and Yemen) will not apply to the following individuals:

  • Any applicant who has a credible claim of a bona fide “close familial relationship” with a person or entity in the United States

Relationship with a “person”: Without any further clarification from the Supreme Court, and without any input from stakeholders, the Department of Homeland Security and the Department of State updated their websites on June 29, 2017, to provide clarification on what constitutes a “close familial relationship.”[1]

At the time of this article, “close familial relationship” includes parent, parent-in-law, spouse, fiancé, child, adult son or daughter, son-in-law, daughter-in-law, sibling (whether or whole or half), and any step relationships. The definition does not include grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-law, and sisters-in-law.

  • Any applicant who has a bona fide relationship with an entity that is formal, documented, and formed in the ordinary course, rather than for the purpose of evading the executive order

Students and applicants in many employment-based nonimmigrant categories, as well as employment-based immigrant categories, will generally be exempt from the Executive Order, since they have a bona fide formal, documented, relationship with a U.S. entity formed in the ordinary course.

Students (F, M, J) 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 be exempt.

Workers who work or who have accepted an offer from a U.S. company and are entering the United States to resume or assume the  job under a nonimmigrant visa such as H, L, E, I, O, P, Q, or R would be exempt.

Business (B-1) or tourist (B-2) visa holders or visa exempt individuals may or may not be exempt depending on their purpose.  People coming as B-2 visitors to visit their close family members may be allowed, but not for mainly tourist purposes. A lecturer coming under a B-1 visa was reflected in the Supreme Court’s opinion as qualifying to be admitted.  A salesperson attempting to enter to visit prospective customers for his or her out of U.S. employer may not.  A person from a listed country seeking to enter to attend a business conference would most likely not be exempt.

Foreign medical graduates from the six named countries coming to take necessary examinations before being admitted to a medical education program may have a difficult time. These medical graduates cannot obtain a J-1 or H-1B for residency training without the test. It is only offered in the United States and individuals have to come on a visitor visa to be able to take it. It is unclear, at this time, whether a letter from the Educational Commission on Foreign Medical Graduates (which has to approve the individual to take the examination) will create a qualifying “bona fide relationship” but it is certainly arguable that the letter does.

  • Eligible derivatives of principal visa applicants who are deemed to be exempt from the executive order’s suspension of entry or who qualify for a waiver under the executive order
  • Any applicant who was in the United States on June 26, 2017

An individual from one of the six designated countries who was present in the United States on June 26, 2017, who was admitted on a single-entry or multiple-entry visa will not be subject to the travel ban when applying for a subsequent visa.  Similarly, an individual from one of the six designated countries who was present in the United States on June 26, 2017, but whose visa will expire during travel abroad will not be subject to the travel ban when applying for a new visa in order to return to the United States.

  • Any applicant who had a valid visa at 5:00 pm EST on January 27, 2017, the day the executive order was signed
  • Any applicant who had a valid visa on June 28, 2017
  • Any lawful permanent resident of the United States
  • Any applicant who is admitted or paroled into the United States on or after June 26, 2017
  • Any applicant who has a document other than a visa, valid on June 29, 2017, or issued on any date thereafter, that permits travel to the United States who seeks entry or admission (e.g., advance parole)
  • Any dual national of a country designated under the order when traveling on a passport of a non-designated country and, if needed, holds a valid U.S. visa
  • Any applicant traveling on a diplomatic visa
  • Any applicant who has been granted asylum, has already been admitted as a refugee, granted withholding of removal, advance parole, or protection under the Convention Against Torture
  • Any applicant who has been granted asylum, has already been admitted as a refugee, granted withholding of removal, advance parole, or protection under the Convention Against Torture
  • Any asylee or refugee following to join spouse or child

Waivers

Individuals who are not exempt from the executive order may seek a waiver. The order grants Consular Officers the permission to grant waivers and authorize the issuance of visas on a case-by-case basis if an applicant can demonstrate that he or she meets all of the following criteria:

  • Denying entry under the 90-day suspension period would cause undue hardship;
  • The applicant’s entry would not pose a threat to national security; and
  • The applicant’s entry would be in the national interest.

Summary

The President’s authority to control who is allowed to enter the United States is under federal court scrutiny.   The ultimate outcome is unpredictable.

Individuals who are nationals of only Iran, Libya, Somalia, Sudan, Syria and Yemen should avoid embarking on international travel.  Persons who do should equip themselves with clear documentation of their permissible status, their family or other entities that are formal, documented and formed in the ordinary course, rather than for the purpose of avoiding the executive order, before departing for the United States.

[1] On June 29, 2017, shortly before the travel ban took partial effect, the state of Hawaii filed an emergency motion in federal court challenging the Trump Administration’s definition of who can be excluded from entering the United States and asked the court to clarify the scope of the Supreme Court’s ruling on the president’s executive order. As of the writing of this article, that motion has yet to be granted.