On June 26, the Supreme Court granted certiorari to review the current administration’s executive orders barring people from certain countries from entering the United States. The Court granted a stay of the executive orders in part but will allow some people to be stopped at the border under the executive orders while the case is pending until the fall.

Background

On January 27, 2017, President Trump signed an executive order dealing with immigration titled, “Protecting the Nation from Foreign Terrorist Entry into the United States.” The provisions contained in the order imposed a 90-day ban on entry for all nationals of seven named countries: Syria, Iraq, Iran, Libya, Somalia, Sudan and Yemen. The order also imposed a halt for all refugee admissions for four months and Syrian refugee admissions indefinitely. In addition, the order laid out added security protocols to be put in place, including a requirement that U.S. government officials conduct a face-to-face interview with every person who applies for a nonimmigrant visa.

After facing legal challenges to implementation, President Trump issued a second executive order that removed Iraq from the list of named countries. That order, which was slated go into effect on March 16, did not revoke existing visas approved before that date and did not apply to current lawful permanent residents and green card holders. This second order was also met with legal challenges, and stays were issued by courts across the country.

Analysis

On June 26, the Supreme Court granted certiorari of the case and will hear oral arguments in October. In the meantime, the Supreme Court allowed the travel ban to go into effect but carved out a subsection of people from the named countries that cannot yet be stopped at the border. The following language was set forth in the opinion.

In practical terms, this means that §2(c) 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 EO—2….All other foreign nationals are subject to the provisions of [Executive Order]—2.

The term “bona fide relationship” was only partly defined by the court, which cited examples such as students accepted to U.S. universities and an employee who has accepted a job with a company in the U.S. There will likely be legal challenges regarding the full definition of a “bona fide relationship” once people from the named countries begin to be stopped at the border by Customs and Border Protection.

Practical Takeaways

For employers who currently employ foreign nationals from one of the six named countries, the definition laid out by the Court will likely cover any employees currently outside of the country wishing to reenter. However, all foreign nationals considering trips outside the U.S. to any of the banned countries should not travel to those banned locations. Further, all foreign nationals should consider postponing upcoming trips outside the U.S., as it is anticipated that U.S. Visa Officers, as well as Customs and Border Protection, will implement heightened scrutiny and screening for all those seeking to enter the U.S. This could result in delays in visa stamp processing at the U.S. Embassies/U.S. Consular Posts, as well as delays in admission upon arrival in the U.S. We anticipate many questions and concerns regarding immigration issues in the days ahead, so please do not hesitate to contact us.