November 18, 2019

November 18, 2019

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US Supreme Court Denies Motion to Clarify Scope of Prior ‘Travel Ban’ Decision

The Court’s decision leaves in place the relevant parts of a July 13 decision by a federal district judge in Hawaii finding the administration’s interpretation of “bona fide relationship with a person or entity in the United States” to be unduly restrictive.

This Immigration Alert serves as an update to our prior summary of the US Supreme Court’s June 26 decision partially granting the government’s request to stay enforcement of two preliminary injunctions that temporarily halted enforcement of Executive Order (EO) No. 13780, the so-called “travel ban,” and our subsequent overview of a diplomatic cable that laid out the administration’s interpretation of when the EO’s travel restrictions would not apply.

Following the Court’s June 26 decision, the government created and distributed to consular posts and other relevant agencies a list of family relations it would recognize as sufficiently close relationships so as to warrant an exception. This list included only parents, parents-in-law, spouses, fiancés, children, adult sons or daughters, sons-in-law, daughters-in-law, siblings, and step relationships. The Supreme Court decision included a series of nonexhaustive examples (for example, a spouse or mother-in-law “clearly” qualifies as a close relationship) but did not provide comprehensive guidance.

The State of Hawaii promptly challenged this interpretation, and in a July 13 decision, US District Judge Derrick K. Watson of Hawaii, the same judge who issued the prior nationwide injunction against the travel ban, found the government’s enforcement of the travel ban against grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States to be an unduly narrow construction of the Supreme Court’s ruling, and enjoined inclusion of this set of “close” family relations pending further litigation on the merits.

The government filed a motion with the Supreme Court on July 14, asking it to clarify its order of June 26. On July 18, the Court denied the government’s motion, leaving the lower court’s injunction in place. The Supreme Court did, however, stay pending appeal a separate aspect of the district court’s ruling that modified the preliminary injunction with respect to certain refugees.

The 90-day travel ban—which is in effect until September 27 and impacts citizens of Iran, Libya, Somalia, Sudan, Syria, and Yemen—is unenforceable with respect to foreign nationals who have a “credible claim of a bona fide relationship with a person or entity in the United States.” Following the most recent court decisions, the list of familial relationships exempt from the travel ban now includes the following:

  • Parent (including parent-in-law and step-parent)

  • Spouse

  • Child or adult son or daughter (including son-in-law, daughter-in-law, and stepchild)

  • Sibling (whole or half, brother-in-law, sister-in-law, and stepsibling)

  • Grandparent

  • Grandchild

  • Aunt or uncle

  • Niece or nephew

  • Cousin

Nationals of one of the six affected countries who are not covered by the above list could be denied visas or admission to the United States during this period. Note that US permanent residents, dual nationals of one of the six countries who can present valid passports from a country not on the list, and current US visa holders are not affected.

As we described in our prior alert, 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 through a three-page supplemental questionnaire that requests, among other information, passport numbers, employment histories, and travel histories—including the source 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.

Copyright © 2019 by Morgan, Lewis & Bockius LLP. All Rights Reserved.

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Eric Bord, Immigration Attorney, Morgan Lewis
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Eric S. Bord counsels clients on corporate immigration issues involving the recruitment, hiring, transfer, and retention of personnel worldwide. He also advises businesses on compliance and risk management in connection with their global immigration programs. This includes counseling on compliance with I-9 and E-Verify rules, advising clients during immigration investigations, and conducting immigration due diligence for corporate transactions. Eric heads Morgan Lewis’s immigration compliance and risk management practice.

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Daniel Schaeffer, Morgan Lewis, Employment Attorney
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Eleanor Pelta, Morgan Lewis, Immigration Lawyer
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A recognized leader in immigration and nationality law, Eleanor Pelta counsels clients on legal and strategic issues arising from the international movement of key personnel, from the individual transfer of high-ranking executives to high-volume transfers of expert staff. Her experience includes the use of blanket visa programs and the qualification of companies as “treaty investor” or “treaty trader” entities. Additionally, Eleanor counsels businesses on the immigration implications of corporate changes, such as mergers, acquisitions, downsizings, reductions in force,...

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A James Vazquez-Azpiri, Morgan Lewis, employment attorney
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A. James Vázquez-Azpiri counsels corporate clients on hiring and retaining foreign employees in his business immigration law practice. He advises businesses on labor certifications, specialty occupation petitions, and intracompany transfers. Clients rely on James for guidance through immigration law compliance during mergers, acquisitions, and corporate restructurings. He helps clients think and work proactively by providing them with traditional compliance policy reviews and audits, case management and litigation technology, and international executive travel and...

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