On June 26, 2017, the Supreme Court of the United States lifted parts of the temporary injunction barring the Trump Administration from blocking the entry of nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen or for certain refugees.
The Trump Administration is expected to implement the portions permitted by the Supreme Court in 72 hours after the Court’s ruling, or on June 29, 2017. The Department of Homeland Security has issued a website update stating that implementation will be done with public notice to potentially affected travelers.
The Supreme Court left in place the temporary injunction against blocking the entry of foreign nationals who have a “credible claim of a bona fide relationship with a person or entity in the United States.” This means that foreign nationals who have the following types of relationships should be able to enter the U.S.:
- Persons who have a close familial relationship with a person or persons in the U.S.
- Persons who have genuine offers of employment with U.S. employers
- Persons who have established business relationships with U.S. companies or entities
- Persons who are students at U.S. colleges, universities, or educational institutions
Foreign nationals applying for a nonimmigrant visa who do not have a connection to persons or entities in the U.S. and are from one of the six “ban” countries will be barred from entering the U.S. for at least 90 days.
The Supreme Court ruling also suspends the entry of refugees who do not have a bona fide relationship to U.S. persons or entities for at least 120 days. The ruling leaves in place the cap of 50,000 refugees for fiscal year 2017 for refugees without the required bona fide relationships with American individuals or entities, but does not affect the pre-existing cap of 110,000 for fiscal year 2017 for refugees with bona fide relationships.
The Supreme Court ruling is specific only to the temporary injunction put in place by the Fourth and Ninth Circuits. The Supreme Court also granted certiorari, meaning that the Court will hear the full case later and make a permanent decision on whether the Trump Administration’s travel ban is constitutional, in its next session beginning in October 2017.
Important Effects on Employers, Entities and Persons in the U.S.
As it relates to U.S. employers, entities and “persons in the U.S.”, the Supreme Court’s ruling emphasizes the importance of potentially affected foreign nationals carrying documents showing their bona fide relationships to U.S. employers, entities, family, or other persons in the U.S. while travelling outside the United States.
For connections to U.S. entities, foreign nationals must be able to show a relationship that is “formal, documented, and formed in the ordinary course.” For connections to U.S. individuals, a “close familial relationship is required.”
Examples of documentation of such ties can include:
- Up-to-date job offer letter confirming on-going employment
- Copies of employer-sponsored visa petitions filed with the Department of Homeland Security
- Recent pay statements or paystubs
- Birth/marriage certificates or equivalent evidence of relationship to close family members living in the U.S. (parents, children, siblings)
Foreign nationals already granted visas, including the B-1/B-2 business/tourist visa, should expect additional scrutiny at U.S. Ports of Entry (land border crossings, international airports, seaports), especially if the visa was granted prior to the effective date. Such travelers should plan accordingly and bring evidence of their U.S. ties, as noted above.
Potentially affected foreign nationals should seek the advice of an immigration attorney before traveling. If you are a potentially affected foreign national client represented by Jackson & Hertogs, we recommend contacting your team at Jackson & Hertogs well in advance of any travel outside the U.S.
