June 26, 2017
On Monday Morning, the Supreme Court partially lifted the various injunctions on the 2nd version of President Trump’s travel ban. This means that refugees, as well as certain nationals of the six affected majority-Muslim countries (Libya, Iran, Somalia, Sudan, Syria and Yemen) may be barred from entering the United States, starting as soon as this Wednesday. Importantly, the scope of the ban has been narrowed to exclude (i.e. to not ban) “foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.” The order goes on to describe in some detail what would qualify as such a “bona fide relationship”:
For individuals, a close familial relationship is required. A foreign national who wishes to enter the United States to live with or visit a family member, like [a] wife or [a] mother-in-law, clearly has such a relationship. As for entities, the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading [the travel ban]. The students from the designated countries who have been admitted to the University of Hawaii have such a relationship with an American entity. So too would a worker who accepted an offer of employment from an American company or a lecturer invited to address an American audience. Not so someone who enters into a relationship simply to avoid §2(c): For example, a nonprofit group devoted to immigration issues may not contact foreign nationals from the designated countries, add them to client lists, and then secure their entry by claiming injury from their exclusion.
It will be very important to learn how the existence or non-existence of such a qualifying ‘bona fide’ relationship will be established and adjudicated. Will this be done on a case-by-case basis upon entry to the U.S.? Will certain visa categories – such as an H-1B visa, which cannot be issued absent a qualifying offer of employment from a U.S. employer – be automatically cleared for entry? The Trump Administration had previously indicated that they would re-implement the ban 72 hours after getting clearance from the courts, so we can expect the Department of Homeland Security to issue guidance about this soon, and we will be sure to keep this post updated with new information.
The Supreme Court also confirmed that they will hear the case in full this October, unless the Administration completes the planned review of immigration security procedures and lifts (or otherwise alters) the ban.
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