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.
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:
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.
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:
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.
If you have any questions or would like more information on the issues discussed in this Immigration Alert, please contact any of the following Morgan Lewis lawyers:
A. James Vázquez-Azpiri