On Monday June 26th, the U.S. Supreme Court made the momentous decision to review the rulings of several lower courts on the Trump administration’s revised travel ban. At the same time, the justices lifted the lower courts’ injunctions on certain key features of the travel ban, stating that the administration may enforce the travel ban on nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen who DO NOT have “a credible claim of a bona fide relationship with a person or entity in the United States.”

In this article we will tell you what you need to know about the revised travel ban, the Supreme Court’s decision, and who is likely to be impacted by it.

 

The Revised Travel Ban

The revised travel ban, Executive Order 13780, was signed on March 6, 2017, revoking the first travel ban (Executive Order 13769), and came into effect on March 16th with the stated purpose of protecting American citizens and interests from terrorism. Like its predecessor, the revised travel ban orders in Section 2(c) a 90-day suspension of entry into the U.S. of nationals from the six countries listed above. In Section (6) the order also suspends the entry of refugees under the U.S. Refugee Admissions Program (USRAP) for 120 days and caps the number of refugees who can be admitted to 50,000. During this time, U.S. government agencies are ordered to review and determine what additional information, if any, they need from each country to guarantee that its nationals wishing the enter the U.S. are not security concerns, and to establish screening and vetting procedures for those wishing to enter the U.S. The executive order does allow important exemptions to the travel ban for lawful permanent residents, holders of valid, non expired visas, foreign nationals admitted on humanitarian grounds, dual citizens, holders of diplomatic visas, asylum seekers, and refugees who have already been admitted to the U.S.

 

A Poorly Written Regulation

Under the very real threat of terrorism, these provisions may seem justified. However, this revised travel ban contains some of the same fatal flaws as the one it replaced.

• The revised ban still targets the wrong countries.
It targets countries whose nationals have NEVER been linked to or charged with acts of terror on American soil, but that are BELIEVED by the administration to be acting hostilely to American interests. At the same time, it does not target countries whose nationals HAVE been linked to or charged with acts of terrorism.

• The ban may not be temporary.
We think it is unrealistic to expect 1) that the six designated nations will supply the information demanded by the U.S. government, and 2) that the U.S. government will think the information sufficiently trustworthy. This lack of trust could lead to an indefinite suspension for nationals from these countries.

• The ban disregards existing vetting processes for immigration.
Section 5 of the ban orders government agencies to establish baseline guidelines for vetting immigrants that would prevent potential terrorists from entering the United States. This requirement ignores the stringent security measures that are already in place, including extensive background checks.

• The ban is influenced by religious intolerance.

Most damaging to the revised travel ban have been the rulings of lower courts around the country. For example, U.S. Fourth Circuit Court of Appeals asserted that the ban  “drips with religious intolerance, animus, and discrimination.”  This ruling and others like it led to court injunctions being placed on Section 2(c), which suspended entry of Libyan, Iranian, Sudanese, Somali, Yemeni, and Syrian nationals, and Section 6, which suspended entry of refugees.

 

SCOTUS Gets Involved

On June 1st the Trump administration appealed the decisions of the lower courts to the U.S. Supreme Court, which on June 26th decided officially to review the lower courts’ rulings on the travel ban when it reconvenes in October. The Court also decided to allow some aspects of the travel ban to go into effect in the meantime. In particular, it decided that the Trump administration can enforce the travel ban on nationals from the six designated countries who DO NOT have “a credible claim of a bona fide relationship with a person or entity in the United States.” Nationals with “a close familial relationship” with a U.S. person or a “formal, documented” business relationship with a U.S. entity, on the other hand, will be allowed to enter. The Court also stated that individuals cannot establish these relationships for the purpose of avoiding the travel ban.

The Court did not define “close familial relationship”, but subsequent State Department guidelines included parents, spouses, children, adult sons and daughters, sons- and daughters-in-law, and siblings in the U.S.

The State Department guidelines excluded grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers- and sisters-in-law, fiancées, and other extended family members.

 

Who is likely to be impacted?

The Supreme Court’s decision went into effect on Thursday, June 29th, and despite its momentous nature, many nationals from the six designated countries will still be allowed to enter the U.S, in addition to those with bona fide, close familial relationships:

• Holders of valid immigration visas issued before June 26th, 2017

• Lawful permanent residents of the U.S.

• Asylum seekers and those who have already been granted asylum

• Diplomats

• Individuals with bona fide relationship to an American entity, including students accepted at U.S. universities, employees hired by U.S. companies, and lecturers invited to address American audiences

• Refugees who were processed overseas that have family connections or connections with a refugee agency, even if the cap of 50,000 on refugees has been surpassed

 

On the other hand, other individuals may face new difficulties when trying to enter the U.S.:

• Individuals who DO NOT have bona fide relationships with U.S. persons or entities

• Tourists from designated countries

• Individuals with employment based visas that DO NOT require a petitioning employer (EB-1, National Interest Waiver), as they may not be able to demonstrate a bona fide relationship

• Individuals who establish bona fide relationships after June 26th, as such relationships could be seen by as formed for the purpose of avoiding the travel ban.

Therefore, if you, your family members, or your associates are planning to travel to the U.S., it is imperative that you understand your rights and whether documents attesting to a bona fide relationship with a U.S. person or entity are in order. Please feel free to contact our office with any questions.