“Travel ban” Executive Order Update

On June 26, 2017, the U.S. Supreme Court agreed to hear the Federal Government’s appeal of the federal court decisions enjoining sections of the Administration’s March 6, 2017 Executive Order (E.O.). That E.O. suspended entry for an initial period of 90 days of citizens or nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen, as well as for 120 days of refugees, and capped refugee admissions for the current fiscal year at 50,000.

The Supreme Court will hear the appeal in its next term that begins in October 2017.

The Supreme Court also narrowed the scope of the lower courts’ injunctions, allowing the government to implement the E.O. against persons from the six named countries or refugees who do not have “a credible claim of a bona fide relationship with a person or entity in the United States.” The Supreme Court gave only brief guidance about how those relationships should be defined, creating much confusion. The E.O. took effect on June 29, 2017, and the government construed those exempted from the travel and refugee bans very restrictively.

On July 13, 2017, the Federal District Court of Hawai’i ruled that the government’s definition was too narrow, and expanded the classes of persons the government to whom could not apply the E.O.   That decision was then appealed as too broad, resulting in a Supreme Court clarification on July 19, 2017.  As a result of the various court rulings, the E.O cannot be enforced against people from the six countries or refugees who:

  • are parents, parents-in-law, spouses, fiancé(e)s, children, adult sons or daughters, sons or daughters-in-law, whole or half-siblings, step-relatives by marriage, grandparents, grandchildren, brothers or sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons already in the U.S.;
  • have a bona fide relationship with a U.S. entity that is “formal, documented, and formed in the ordinary course”, including those with job offers from U.S. employers. The Supreme Court specifically gave additional examples such as students accepted to attend, or those coming to speak or lecture at,  U.S. universities.  Presumably people from the six countries who intend to attend meetings with a business with which they have a documented relationship, would be able to apply for a visa or entry.

Individuals from any of the six countries who have dual nationality may be exempted from the E.O. travel ban if they travel on their passport issued by the non-targeted country. The E.O. also does not apply to those who already have permanent residency or refugee or asylee status in the U.S., or who were issued visas prior to the June 26th Supreme Court decision.

As a practical matter, the U.S. consulates are denying visas to many people from the six countries who may well have gotten visas in prior years, regardless of the various court decisions. There is no appeal from a denial of a U.S. visa, though reconsideration may be requested.

As a result of the travel ban and the uncertainty surrounding U.S. visa policy under the current administration, many individuals are choosing not to pursue work or study opportunities in the U.S.   Eventually there may be measurable negative economic consequences from the new policies.