Supreme Court Partially Reinstates Executive Order on Travel

UPDATE: On June 28, 2017, the U.S. Department of State issued a cable to all of its consular posts regarding the implementation of the Executive Order in light of the SCOTUS decision discussed below. The cable outlines the criteria to be considered by consular posts when determining whether or not to issue visas to foreign national applicants and can be found here: http://live.reuters.com/Event/Live_US_Politics/989297085.

ORIGINAL ARTICLE:

As previously reported, federal courts recently blocked key provisions of President Donald J. Trump’s revised March 6, 2017 Executive Order (EO) on travel from being implemented. On June 26, 2017, the Supreme Court of the United States (SCOTUS) agreed to hear arguments regarding the EO’s validity. SCOTUS also temporarily reinstated key provisions of the EO, allowing it to be implemented, except to individuals who can establish a “credible claim of a bona fide relationship with a person or entity” in the U.S. Among other provisions, the March 6, 2017 EO blocks travel for 90 days for certain nationals of Iran, Yemen, Sudan, Syria, Somalia and Libya, suspends the refugee program for 120 days, and limits refugee admissions for fiscal year 2017. The SCOTUS order, which lifts the lower courts’ decisions that temporarily prevented the EO from taking effect, can be found here.

Who Does the March 6, 2017 EO Apply to?

The March 6, 2017 EO only applies to individuals from the six countries who (1) are outside of the U.S. as of the effective date of the EO*, (2) did not have a valid visa at 5:00 p.m. EST on January 27, 2017, and (3) do not have a valid visa on the effective date of the order.

The EO provides exceptions to: any lawful permanent resident of the United States; any foreign national who is admitted to or paroled into the United States on or after the effective date of the EO; any foreign national who has a document other than a visa, valid on the effective date of the EO or issued on any date thereafter, that permits him or her to travel to the United States and seek entry or admission, such as an advance parole document; any dual national of a country designated under section 2 of this order when the individual is traveling on a passport issued by a non-designated country; any foreign national traveling on a diplomatic or diplomatic-type visa, North Atlantic Treaty Organization visa, C-2 visa for travel to the United Nations, or G-1, G-2, G-3, or G-4 visa; or any foreign national who has been granted asylum; any refugee who has already been admitted to the United States; or any individual who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture. The EO also provides for case-by-case waivers in certain circumstances.

The EO also suspends the refugee program for 120 days and limits the admission of refugees for fiscal year 2017 to 50,000, providing a case-by-case waiver in certain circumstances.

*The effective date of the EO, initially March 16, 2017, was recently modified by President Trump through a June 14, 2017 memorandum stating that, in light of federal litigation, the effective date would be delayed until 72 hours after the federal courts’ injunctions are lifted or stayed.

How Does the SCOTUS Order Affect the EO’s Implementation?

The SCOTUS order is not a final ruling on the EO’s constitutionality. The SCOTUS order is only temporary until the case is heard on the merits. The case will be argued during the October 2017 term.

The SCOTUS order exempts certain individuals from the EO – specifically, it protects individuals who have a “credible claim of a bona fide relationship with a person or entity” in the U.S.

What is a Bona Fide Relationship with a Person or Entity in the U.S.?

SCOTUS clarifies that the provisions of the EO remain blocked and may not be enforced against individuals similarly situated to the foreign nationals on whose behalf the federal lawsuits subject to the appeals were brought. It provided some examples of individuals with bona fide relationships to the U.S.:

  • A foreign national who wishes to enter the United States to live with or visit a family member (e.g. a wife or mother-in-law).
  • Students who have been admit­ted to a U.S. university.
  • A worker who accepted an offer of employment from a U.S. com­pany.
  • A lecturer invited to address a U.S. audi­ence.

The SCOTUS order also provides an example of a relationship created simply to avoid the EO: “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.”

How Can a Bona Fide Relationship Be Documented?

The relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading the EO. There is no established procedure by the U.S. Department of Homeland Security (DHS) to evaluate such claims and it is uncertain how it will be enforced on a case-by-case basis. Individuals returning to the U.S. who are subject to the EO should bring extensive documentation of their ties to the U.S. and should be prepared to argue how they have a “bona fide” (i.e. genuine and not created to circumvent the EO) relationship with an individual or entity in the U.S. Some examples may include birth certificates, marriage certificates, employment letters, school admission letters, conference invitations, and other similar documents.

How Will the SCOTUS Order Affect International Travel?

Individuals who are in the U.S. and may be subject to the order should not travel internationally, if possible. Affected individuals who are outside of the U.S. should evaluate their potential eligibility to enter the U.S. under one of the exceptions or pursuant to a case-by-case national interest waiver. The situation is still fluid and it is uncertain how the EO and its exceptions will be implemented by the U.S. government and by international airlines.

Interestingly, Justice Clarence Thomas (joined by Justices Alito and Gorsuch) wrote an opinion concurring and dissenting in part with the SCOTUS order, arguing that the blocks on the implementation of the EO should have been lifted in their entirety, without exception. Part of the reasoning according to Justice Thomas was that the SCOTUS remedy would prove “unworkable” and that it would burden executive officials with the task of deciding whether individuals have a sufficient connection to a person or entity in the U.S., potentially resulting in a “flood of litigation.”

The uncertainty and current lack of more specific guidance could lead to delays and confusion for certain individuals attempting to enter the U.S. Individuals who may be affected by the EO should continue to monitor the developments and check with immigration counsel when in doubt.

Even individuals not directly affected by the EO could experience increased scrutiny, screening and delays when traveling internationally. Additionally, regardless of the EO, international travel for foreign nationals from any country is a complex matter and may require a fact-specific analysis to determine what documents are required to permit entry into the U.S. Therefore, individuals are encouraged to discuss international travel plans with experienced immigration counsel.

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