United States: U.S. Supreme Court Partially Reinstates Travel Ban

On June 26, 2017, the United States Supreme Court published a 16-page opinion in which it reinstated part of President Trump's March 6, 2017 Executive Order banning travel of nationals from six countries into the United States and agreed to hear arguments on the constitutionality of the travel ban in the Court's October 2017 term.

The Court's decision partially stayed the restraining orders put in place by lower courts that had prevented the implementation of the travel ban. With the Court's decision, parts of the travel ban will be allowed to go into effect between now and October, but on a limited basis.

Under the terms of the travel ban, entry to the United States by nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen is suspended for 90 days. The travel ban also suspends the United States Refugee Admissions Program (USRAP) for 120 days.

The following groups of travelers are exempt from the ban during the temporary reinstatement period:

  • Nationals from the six countries holding valid visas as of June 29, 2017;
  • Green card holders from the six countries;
  • Dual nationals of one of the six countries seeking to enter the United States on the passports of their other nationality.

The most immediate impact will be to refugees and individuals from the six named countries, who are outside the United States, do not currently have a valid visa; and do not qualify for a waiver or fall under the exemptions created by the Supreme Court.

However, the Court's reinstatement of the travel ban limited its scope in important ways. Based on the Court's decision, the following categories of travelers may still be eligible for visas and entry into the United States:

  1. Travelers who can demonstrate a close familial relationship to a person in the United States.
  2. Travelers who can establish a formal, documented relationship to an entity in the United States, including students who have been admitted to United States universities, and workers who have been offered employment by a company in the United States.
  3. Travelers who were exempt under the original terms of travel ban, including:

    • Any lawful permanent resident of the United States;
    • Any foreign national who is admitted to or paroled into the United States on or after the effective date of this order;
    • Any foreign national who has a document other than a visa, valid on the effective date of this order or issued on any date thereafter, that permits him or her to travel to the United States and seek entry or admission, such as an advance parole document;
    • Dual nationals of designated and non-designated countries, if such individual is traveling on a passport issued by a non-designated country;
    • Any foreign national traveling on a diplomatic or diplomatic-type visa, NATO visa, C-2 visa for travel to the UN, or G-1, G-2, G-3 or G-4 visa; and
    • Any foreign national who has been granted asylum; any refugee who is already admitted to the United States; or any individual who has been granted withholding of removal, advance parole, or protection under the United Nations Convention Against Torture.
  4. Persons who can demonstrate that denial of entry would cause undue hardship; whose entry is in the national interest; and who do not pose a threat to national security.

The departments of State and Homeland Security have not yet published guidance on how the Court's decision will be implemented or what standards will be used to determine whether a particular individual fits into one of the categories described above. However, even with guidance, implementation of the travel ban will be unpredictable due to the number of different agencies and consulates making decisions, as well as the broad discretion given to individual consular officers.

Supreme Court arguments on the travel ban are expected to be held in October 2017, and a final decision from the Court could be as late as December 2017. In the meantime, the 90- and 120-day periods for review may be deemed to begin on the date the Supreme Court stayed the injunctions: June 26, 2017, or 72 hours later on June 29, pursuant to a June 14 order from the Trump administration, which stated that the bans would go into effect 72 hours after any injunction was stayed or lifted.

Until further guidance is issued, affected travelers should consider the travel ban as effective immediately and continuing until October arguments at the Court or the expiration of the 90- and 120-day periods, depending upon what guidance is issued from the departments of State and Homeland Security. Duane Morris will continue to monitor implementation of the Court's order and provide additional updates when new information is available.

For Further Information

If you have any questions regarding this Alert, including questions on how the travel ban affects your business and employees, please contact any of the attorneys in the Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.

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