On June 26, the U.S. Supreme Court issued a preliminary ruling allowing partial implementation of President Trump’s revised Executive Order, which banned nationals from six Muslim-majority nations - Iran, Libya, Somalia, Sudan, Syria and Yemen - from entering the U.S. (the “travel ban”). Lower courts had previously stopped the travel ban from taking effect.
The Supreme Court ruling last week, however, allowed the travel ban to be implemented, which it did on June 29 at 8:00 pm (ET), but narrowed its reach so that it now applies only to nationals from the six designated countries “who lack any bona fide relationship with a person or entity in the United States.”
The Department of State (DOS) swiftly issued guidance on the ruling’s interpretation then just as quickly revised the guidance as it pertains to travel ban exemptions and limited waiver opportunities available for travelers and refugees. However, given the challenge of clearly defining the parameters of bona fide relationships, this guidance is unlikely to fend off inconsistency as DOS consular officers adjudicate visa issuance abroad and Customs and Border Protection (CBP) officers admit affected foreign nationals at U.S. ports of entry.
The following exemptions are among those expected to be honored without complication for travelers from the banned countries who fall in one of these classes:
- Lawful permanent residents of the U.S. (“green card” holders).
- Applicants for a work visa based on an approved U.S. employer petition.
- Applicants for a student visa who have been accepted by U.S. universities.
- Individuals who were inside the U.S. on June 26, 2017.
- Individuals who had a valid visa on June 29, 2017.
- Dual nationals entering the U.S. with a passport from a non-designated country.
As such, the above classes of travelers from the six banned countries should be allowed to travel to the U.S. fairly routinely. Further, the following categories of visa applicants from the six designated countries are to be granted waivers from the ban and allowed to travel to the U.S. if they meet all three of the following criteria:
- Denying the visa applicant entry during the 90-day travel ban (120 days for refugees) would cause undue harm;
- The visa applicant’s entry would not pose a threat to national security; and
- The visa applicant’s entry would be in the national interest.
While the above listed federal guidelines define cases falling outside the travel ban’s reach, it is expected that confusion and inconsistency in their application will result in complications for affected travelers whose “bona fide relationship with a person or entity in the United States” is less than fully clear.
This is a summary of the U.S. Supreme Court’s travel ban ruling whose implementation through the various federal agencies is a technically challenging and ongoing process. Employers, HR professionals and affected individuals are advised to examine the travel ban’s specific applicability in consultation with immigration counsel.