Employers Dodge Bullet in Recent U.S. Supreme Court Travel Ban Order
On June 26, 2017, the U.S. Supreme Court decided to partially lift lower court injunctions that had prevented any part of President Trump’s March 6, 2017, executive order (“March 6 EO”) to take effect.
In pertinent part, the March 6 EO barred foreign nationals (“FNs”) from six predominantly Muslim-majority countries—Iran, Libya, Somalia, Sudan, Syria, and Yemen (collectively, the “Six Countries”)—from entering the United States for 90 days (and 120 days for refugees), unless they were exempt from the order. The March 6 EO replaced a much broader travel ban contained in the President’s January 27, 2017, executive order (“January 27 EO”). Lower federal courts in New York and Massachusetts enjoined enforcement of both the March 6 EO and the January 27 EO based on a strong likelihood that these executive orders violated the Due Process and Equal Protection clauses of the U.S. Constitution, among other grounds.
The U.S. Supreme Court’s Partial Travel Ban Order
The U.S. Supreme Court’s partial travel ban order, which went into effect at 8:00 p.m. EDT on June 29, 2017, lifted limited portions of these lower court injunctions against enforcement of the March 6 EO. In its decision, the Supreme Court held that the following FNs are exempt from the partial travel ban: (1) FNs in the United States with a valid visa or a travel/entry document as of June 26, 2017; (2) U.S. permanent residents; (3) dual FNs traveling on passports issued by a non-designated country; (4) FNs seeking admission to the United States in immigrant or nonimmigrant visa classifications that reflect a “bona fide relationship” with organizations or immediate family members in the United States; (5) certain diplomatic and North American Free Trade Agreement (“NAFTA”) visa holders; and (6) FNs already admitted to the United States as asylees and refugees. In the Supreme Court’s view, FNs seeking admission in each of these classifications had relationships with American citizens or organizations that mitigated against the security concerns that the March 6 EO was designed to address.
After the Supreme Court’s decision, both the Department of State (“DOS”) and Department of Homeland Security (“DHS”) offered some guidance in terms of how the partial travel ban will be applied to FNs from the Six Countries. Most importantly, both the DOS and DHS confirmed that the partial travel ban does not apply to most family-based and employment-based visa classification applications. This includes FNs seeking admission in F, H, J, K, L, M, O, P, Q, and R nonimmigrant visa classifications, because each of them reflects the “bona fide” relationship required to offset the President’s security concerns. Possibly excluded from this automatic exemption are certain employment-based applications, such as those by self-petitioning individuals in the EB-1 extraordinary ability classification, that are not based upon standing job offers from U.S. employers. These individuals may have to demonstrate a formal, documented relationship with a U.S. entity or citizen to secure admission.
Bona Fide Relationship
The June 26, 2017, U.S. Supreme Court decision did not define the term “bona fide relationship;” however, the Court provided a number of examples, stating that the test is based on whether a close familial relationship exists between the individual-sponsor and beneficiary. In one of its examples, the Supreme Court noted that a close familial relationship exists between an FN and his or her mother-in-law. The guidelines issued by the DOS, however, did not recognize this as a sufficiently close relationship with respect to family-based immigration. The DOS guidance reflected a very narrow approach and indicated that only parents, mothers-in-law, fathers-in-law, spouses, fiancés, children, adult sons, adult daughters, siblings, and half-siblings are considered to have the required close family relationship. Missing from the list were grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, cousins, nieces, and nephews.
On July 13, 2017, the U.S. District Court for the District of Hawaii rejected the DOS’s definition of “close familial relationship” and ruled that grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, cousins, nieces, and nephews must also be included in the definition. As a result of this ruling, the DOS updated its FAQs on July 17, 2017, to reflect the District Court in Hawaii’s broader definition.
On July 19, 2017, the Supreme Court weighed in on the District Court in Hawaii’s decision. The Supreme Court affirmed the District Court in Hawaii’s expanded interpretation of the family relationships exempt from the travel ban. As such, grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, cousins, nieces, and nephews will continue to fall within the broader definition of “close familial relationship” and, will, therefore, remain exempt from the travel ban.
Any FNs not automatically exempt from the partial travel ban permitted by the U.S. Supreme Court’s interpretation of the March 6 EO may still qualify for exemption so long as they can show that they each have a bona fide relationship with the United States—either with the individual or U.S. entity sponsor. Those FNs unable to show such a bona fide relationship may still be permitted to obtain a visa if they qualify for a waiver. In order to qualify for a waiver, the FN is required to prove each of the following: (1) the denial of entry will cause undue hardship, (2) his or her entry will not pose a threat to national security, and (3) his or her entry into the United States would be in the national interest. It is unclear how such waivers will be processed or even adjudicated.
Lastly, it is important to note that, even if an FN from one of the Six Countries is successful in obtaining a visa to travel to the United States, he or she must still demonstrate admissibility at the port of entry to the U.S. Customs & Border Protection (“CBP”). The CBP retains significant discretion to deny admission to FNs, even those with valid visas, if the agency feels that the FN presents a security or other threat. Time will soon tell how CBP decides to handle the entry of FNs from the Six Countries.
The partial travel ban allowed by the U.S. Supreme Court does not impact employers or those they sponsor. The Supreme Court issued only an interim order, so further changes could be made once the Court hears the case in October and makes its final decision. That being said, employers should identify all employees who were born in, or are citizens of, one of the Six Countries in order to be prepared to respond to any future developments.