On June 26, 2017, the Supreme Court of the United States announced that it had agreed to hear President Trump’s appeal from the decisions by the U.S. Court of Appeals for the Fourth and Ninth Circuits that largely enjoined enforcement of the executive order (“EO”) containing his travel ban. At the same time, the Supreme Court left lower court preliminary injunctions in place during the appeal, except that it narrowed them so they do not bar the government from refusing visas and/or admission to foreign nationals (“FNs”) from six designated countries—Iran, Libya, Somalia, Sudan, Syria, and Yemen (collectively, the “Six Countries”)—if they have no “formal relationship” with any U.S. person or entity.
Practically, the Supreme Court’s interim decision allows students from the Six Countries to continue to enter on their F-1 visas because they have a formal relationship with their schools by virtue of the I-20 that was issued. Similarly, FNs from the Six Countries who are the beneficiaries of approved nonimmigrant or immigrant petitions also may continue to enter due to the formal relationship that the approved petition creates. Less clear is the impact of the Supreme Court’s interim order on less formal immigration categories, such as that of a visitor for business or pleasure, where U.S. citizens or organizations invite an FN to this country, but there is no formal preliminary petition that must be approved before the visa issues. It may take several litigations before the precise contours of this new chapter in the President’s EO are fully defined.
The ink is barely dry on this interim decision, but we do not believe that the restriction that the Supreme Court has added to the lower court injunctions should have any material impact on the efforts of most U.S. employers to secure the admission of global talent from the Six Countries. This is because we are not aware of situations in which employers would support admission of a FN from one of the Six Countries without first securing an approved petition or otherwise engaging in a formal relationship resulting from an invitation. The Supreme Court, however, will have to write the final chapter defining the limits of executive authority in this area.
On June 26, 2017, the U.S. Citizenship and Immigration Services (“USCIS”) resumed premium processing for all H-1B petitions filed by employers on behalf of foreign medical graduates (“FMGs”) participating in the Conrad 30 Waiver program. This program allows certain FMGs to remain in the United States on temporary H-1B visas if they agree to work in medically underserved areas upon completion of their medical training in this country.
On March 31, 2017, USCIS suspended the premium processing service for all H-1B petitions. Starting June 26, 2017, USCIS will allow employers to premium process H-1B petitions filed under the Conrad 30 Waiver program or based on an interested government agency waiver so that FMGs can start working in medically underserved areas as soon as possible.