Supreme Court ruling allows ‘travel ban’ Executive Order to take limited effect

June 26, 2017 - by: Holly Jones 0 COMMENTS

On June 26, the last day of the current term, the U.S. Supreme Court agreed to determine whether the “travel ban” Executive Order’s (EO) focus on primarily Muslim countries violates the First Amendment to the U.S. Constitution and whether the EO exceeds President Donald Trump’s authority granted by the Immigration and Nationality Act (INA). The Court will hear the case in its next term, which begins in October. Because of two lower courts’ findings, the EO has been enjoined from taking effect since May.

Meanwhile, the Court also addressed and limited the existing injunctions on the EO. In particular, the EO’s provisions barring entry of people from Iran, Libya, Somalia, Sudan, Syria, and Yemen may take effect, but only for people “who lack any bona fide relationship with a person or entity in the United States.”

The injunctions remain in place for parties who are “similarly situated” to those who initially challenged the EO in lower courts in Hawaii and Maryland. Specifically, the EO may not be enforced “against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.”

All other foreign nationals will be subject to the provisions of the EO. The Court reasoned that denying entry to those individuals would not burden American parties since arguably no American has a relationship with individuals seeking entry that would rise to the level of hardship.

What is a bona fide relationship?

To provide guidance on what may constitute a bona fide relationship, the Supreme Court turned to the lower courts. The Court noted: “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 . . . clearly has such a relationship. As for entities, the relationship must be formal, documented, and formed in the ordinary course” such that students who have been admitted to an American university would have such a relationship. The Court noted that a worker who accepts an offer of employment from an American company would have such a relationship, too.

On the other hand, an individual who demonstrably enters into a new relationship with an American entity solely to avoid enforcement of the EO would be barred from entry. For example, the Court highlighted the actions of a nonprofit activist group initiating contact with foreign nationals from the targeted countries, adding those individuals to client lists, and using that “relationship” to gain entry for those individuals.

Presumably, most employers that would be affected by the provisions of the EO would be able to demonstrate a required bona fide relationship. However, doing so may require additional documentation and paperwork and result in administrative delays. Thus, employers should be aware of and prepared to handle potential challenges over the next 90 days—and perhaps until the underlying case is decided in the Court’s next term.

While noting that the review is likely already underway, the Court permitted the EO’s directive that the secretary of homeland security conduct a global review to determine whether foreign governments provide adequate information about nationals applying for U.S. visas.

About Holly Jones:
Holly Jones, Legal Editor at BLR--Business and Legal Resources, has written and edited countless alerts, articles, newsletters, and manuals on various topics of labor and employment law. Among the products she has edited areHR Guide to Employment Law: A Practical Compliance Reference, Fifty Employment Laws in Fifty States, Employers State Law Alert, and Wage & Hour Compliance: Practical Solutions for HR. Holly is a graduate of Vanderbilt University Law School and a licensed attorney in the state of Tennessee.
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