United States: US Supreme Court Grants Partial Stay, Permits Limited 90-Day Travel Ban

Last Updated: July 7 2017
Article by Eric S. Bord, Eleanor Pelta and A. James Vázquez-Azpiri

The travel ban will go into force regarding "foreign nationals who lack any bona fide relationship with a person or entity in the United States."

This Immigration Alert summarizes the immediate implications of the US Supreme Court decision that granted, in part, the government's motion to stay enforcement of two preliminary injunctions that froze enforcement of certain sections of Executive Order (EO) No. 13780, commonly referred to as the "travel ban." This EO sought to prevent nationals of six predominantly Muslim countries, Syria, Iran, Libya, Somalia, Sudan, and Yemen, from being admitted to the United States for a period of 90 days, and the sections of the EO subject to this decision will now go into effect on June 29, 2017. As a result, foreign nationals from the six enumerated countries who cannot show bona fide ties to the United States may be barred from entering the country for 90 days starting June 29 through September 27, 2017, according to the terms of the EO.

Impact for US Employers and Businesses

The immediate impact for US employers and businesses will likely be minimal, as the Court limited its stay to foreign nationals without bona fide relationships to close family members or entities in the United States. Such persons, if they are nationals of one of the affected six countries, could be denied admission to the United States. Note, however, that this decision does not affect any lawful permanent resident or dual national of one of the six countries who can present a valid passport from a country not on the list.

We expect that the vast majority of visa applications that may directly affect business operations will proceed normally, subject to existing heightened security procedures, including the following:

  • Employer-specific work visas. Consular visa processing for beneficiaries of approved nonimmigrant petitions (e.g., H-1B, L-1A, L-1B, E-3, O-1) should proceed uninterrupted. L-1A and L-1B applications under a company's approved Blanket L petition should be similarly unaffected, as all of these situations fall clearly within the exception carved out by the Court for those with accepted offers of employment.
  • Investor visas. Both nonimmigrant (E-1, E-2) and immigrant (EB-5) investor visa processing for nationals of the affected countries should also proceed normally because all three require a "bona fide" relationship with an established US entity, specifically the target of the foreign investment.
  • Self-sponsored immigrant visas. In limited cases an individual can self-sponsor for a green card as an alien of extraordinary ability in the sciences, arts, education, business, or athletics. Normally the individual is already in the United States and will seek an adjustment of status, but an approved I-140 in this category can also support immigrant visa processing abroad. Though no specific offer of employment is necessary, a successful petition does require "clear evidence that the alien is coming to the United States to continue work in the area of expertise." Under the Court's analysis, this would likely constitute a sufficient bona fide relationship with a US entity so as to fall under the exception.
  • Family-based visas by relatives of US citizens or lawful permanent residents. These petitions should continue to be processed normally as there is a clear exception for any foreign national "seeking entry to live with or visit a family member."
  • Other immigration-related processes. The "travel ban" only implicates visa applications and requests for border admission by individuals from the six listed countries. All other processes (e.g., PERM labor certification, requests for extension or adjustment of status) not specifically targeted by the EO are unaffected.

Applicants not otherwise subject to the EO may still face additional scrutiny and delay during their visa application processes. Effective May 25, consular offices implemented the administration's "extreme vetting" efforts with a three-page supplemental questionnaire that requests, among other information, applicants' passport numbers, employment histories, and travel histories—including sources of funding—over the last 15 years. Affected applicants can also expect to be asked to hand over their phones and other electronic devices, including contact lists and photographs, for close examination.

Summary of the Decision

The issue before the Court was a review of two preliminary injunctions that halted enforcement of key provisions of EO No. 13780 pending further review on the merits. The US District Court for the District of Maryland entered a nationwide preliminary injunction barring the government from enforcing Section 2(c) of the EO, which directed that the entry of nationals from six countries (Libya, Somalia, Sudan, Syria, Iran, and Yemen) be suspended for 90 days from the effective date of the order so as to provide the Secretary of Homeland Security adequate time to conduct a global executive review to determine whether foreign governments provide sufficient information about foreign nationals applying for US visas.

A subsequent decision by the US District Court for the District of Hawaii broadened the preliminary injunction to include the EO provisions relating to the suspension of refugee admissions, the reduction in the overall refugee cap, and the global executive review described above. Appellate review by the US Courts of Appeals for the Fourth Circuit and the Ninth Circuit upheld the decisions by the lower courts.

The June 26 decision by the Supreme Court stays both injunctions, but only in a restricted manner. Section 2(c), the 90-day travel ban, remains unenforceable against any foreign national who has a "credible claim of a bona fide relationship with a person or entity in the United States." Guided by the facts in the underlying cases, the Court provides the following examples:

  • A foreign national seeking entry to live with or visit a family member will not be subject to the travel ban.
  • An individual from one of the six countries applying for a student visa to study in the United States will not be barred from entry.
  • A worker who has accepted an offer of employment from an American company may apply for a visa and enter the United States to work pursuant to the terms of the offer.
  • A lecturer invited to address an American audience will be permitted proceed normally.

Foreign nationals from the six enumerated countries who cannot show bona fide ties to the United States may be barred from entering the country for 90 days—from June 29 until September 27, 2017—while the Secretary of Homeland Security conducts the global executive review. The decision also stays the injunction of the suspension of refugee admissions and the refugee cap—subject to the same "bona fide relationship" limitation.

The Court has also consolidated the two underlying cases for argument and directed the clerk to set a briefing schedule that will lead to hearings during the first session of the October 2017 term.

This article is provided as a general informational service and it should not be construed as imparting legal advice on any specific matter.

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