On June 26, 2017, the Supreme Court of the United States (SCOTUS) partially lifted the injunction and agreed to hear arguments on President Trump’s March 6, 2017 executive order entitled Protecting the Nation from Foreign Terrorist Entry into the United States (the “Order”). The Order suspends unrestricted entry into the United States for nationals of six countries: Iran Libya, Somalia, Sudan, Syria, and Yemen for 90 days. The Order, which would have become effective as of March 16, 2017, was suspended on March 15, 2017 after a federal court in Hawaii issued a nationwide temporary restraining order against its implementation. On that same day, a federal court in Maryland published a decision to block the Order’s 90-day suspension. The U.S. Department of Justice (DOJ) appealed both decisions to SCOTUS and SCOTUS has agreed to hear both of the appeals, consolidating the cases for argument.
In its June 26 decision, SCOTUS partially lifted the temporary injunctions placed on the Order from being enforced by narrowing the scope of the injunctions: The Order may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States. All other foreign nationals are subject to the provisions of the Order. Examples provided of the sort of relationship that qualifies include: (a) the foreign national has a close familial relationship and wishes to enter the United States to live with or visit a family member, (b) the foreign national is a student who has been admitted to a U.S. school, (c) the foreign national accepted an offer of employment from an American company, and (d) the foreign national is a lecturer invited to address an American audience.
Employers with traveling employees seem to be exempt by the partial injunction. It appears that the Order will not apply to a bona fide employment relationship, which is any relationship that is formal, documented, and formed in the ordinary course of business. The Court provided an example of a relationship that would not be considered bona fide, such as a nonprofit group devoted to immigration issues, which contacts foreign nationals from the designated countries, adds them to client lists, and then secures their entry by claiming injury from their exclusion.
Finally, the Court applied the injunction to refugees with no ties to the U.S. The Court stated, however, that the injunction may not apply “ ... against an individual seeking admission as a refugee who can credibly claim a bona fide relationship with a person or entity in the United States. Nor ..., such a person may not be excluded pursuant to §6(b), even if the 50,000 person cap has been reached or exceeded.”
Littler will continue to monitor developments pertaining to the Order and provide updates as they occur.