Supreme Court's Partial Reinstatement of Trump's Travel Ban Has Implications for Employers of Foreign Nationals
Author: Rena Pirsos, XpertHR Legal Editor
UPDATE: On July 13, 2017, a US federal district court judge in Hawaii issued an order expanding the list of family members who will be exempt from President Trump's travel ban to include grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews and cousins of individuals living in the US. Such individuals will be considered as having the requisite "bona fide relationship" with an individual living in the US.
June 27, 2017
In an order issued on Monday, the Supreme Court agreed to allow President Trump's travel ban to be partially reinstated until the Court hears oral arguments on the ban's lower court challenges later this year. The travel ban was blocked from taking effect by a federal court in March.
The travel ban halts, for 90 days, the issuance of visas and other immigration benefits to nationals of six Muslim-majority countries: Syria, Iran, Libya, Somalia, Sudan and Yemen. It also suspends, for 120 days, refugee admission to the US from all countries, and reduces the overall number of refugee admissions to the US for fiscal year 2017.
The Supreme Court's order specifies that the ban will apply only to travel to the US by foreign nationals who do not have "a credible claim of a bona fide relationship with a person or entity in the United States." In other words, individuals who do not have close family ties with anyone in the US or are not employed by a business or enrolled at a school in the US will not be permitted to come here.
The order stipulates that any relationships with US individuals or entities must be "formal, documented, and formed in the ordinary course, rather than for the purpose of evading" the ban. From an employer's perspective, that means individuals traveling to the US with valid work or student visas should not be adversely affected by the ban under the Supreme Court's order. However, because of the discretionary nature of the "bona fide relationship" standard, employers of foreign nationals from the six affected countries should think twice before sending those employees on assignments outside of the US to avoid any difficulties when they attempt to reenter the US.
The opinion's partial dissenters - Justice Clarence Thomas, along with Justices Samuel Alito and Neil Gorsuch - believe that the entire ban should have been left in place. Justice Thomas commented that the Court's order will now burden those officials who will be tasked with deciding whether individuals traveling from the six affected nations have a sufficient connection to a person or entity here. Justice Thomas noted that the likely result will be a flood of lawsuits until the challenges to the travel ban are finally resolved on the merits as courts struggle to determine what exactly constitutes a "bona fide relationship" and a "credible claim" to that relationship, and whether the claimed relationship was formed for the purpose of evading the ban.
The original executive order creating the travel ban - the Protecting the Nation from Foreign Terrorist Entry to the United States - was issued in January. It was later revoked after a successful challenge in federal court. A revised executive order, which added exceptions and included the 90-day ban on travel from the six listed countries, was issued on March 6, 2017. It too was quickly challenged in a federal court, which blocked its implementation.