SCOTUS Ruling on President Trump’s Travel Ban

By Lily Axelrod

How did we get here?

On January 27, the President threw businesses, families, airports, and government agencies into chaos with a simple and sudden executive order: nationals of seven countries were immediately prohibited from traveling to the United States.

In the next few days, the reality on the ground was in constant flux with new announcements about who was subject to the ban. Airports and consulates interpreted the order inconsistently. Affected employers, institutions, and families quickly brought lawsuits challenging the legality of the travel ban, and federal judges responded by blocking application of the ban to certain categories of individuals.

President Trump ultimately withdrew the first version of the ban, and issued a new version with a more limited scope. “Travel Ban 2.0” removed Iraq from the list of affected countries, leaving Syria, Libya, Yemen, Somalia, Sudan, and Iran. The second version also exempts lawful permanent residents (“green card holders”) as well as those who have already entered the US with valid visas.

The new version of the travel ban never fully went into effect, because federal courts immediately blocked it in its entirety. These court injunctions are not final decisions on the legality of the executive order; rather, they are preliminary decisions putting the ban “on hold” while the courts engage in the slower process of determining whether the ban is legal.

The Trump administration appealed, asking the Supreme Court to allow implementation of the ban to go forward while the lawsuits continue in the lower courts. On June 26, the Supreme Court announced that most of the ban would remain “on hold.” It made one exception, allowing the administration to block entry of a narrow class of individuals from affected countries: those who could not prove a “bona fide relationship with a person or entity in the United States.”

The Supreme Court offered little guidance about what types of family and business relationships would qualify. The Trump administration seized on this ambiguity, announcing its own narrow guidelines. The administration limited qualifying family relationships to parents (including in-laws), spouses, children, adult sons and daughters, and siblings (and, a few days later, fiancé relationships).

On July 13, the Federal District Court for the District of Hawaii found that the administration’s definition of “close familial relationship” was too restrictive, and ordered the government to exempt several additional categories of relatives from the travel ban: grandparents, grandchildren, siblings-in-law, aunts and uncles, nieces and nephews, and cousins.

The Trump administration was outraged by the Hawaii court’s limitations on the ban, and requested that the Supreme Court step in to clarify its June ruling. The Supreme Court upheld the Hawaii court’s July 13 expansion of the familial relationship definition, but allowed the government to continue restricting some refugees from entering while the Ninth Circuit court considers an appeal on that issue.

The Supreme Court will have new hearings on the case when it resumes its regular session in October.

Who is allowed to enter the country today?

As of June 19, the ban is still mostly “on hold.” People from the affected countries who have valid visas can continue to travel, and people who are eligible for new visas can continue to apply. New visa applicants must show a “bona fide relationship to a person or entity in the United States,” or must apply for a waiver of that requirement.

Qualifying family relationships now include: parents (including in-laws), spouses, fiancés, children, adult sons and daughters, siblings and siblings-in-law, grandparents and grandchildren, aunts and uncles, nieces and nephews, and first cousins.

Employers can continue to petition for employees from the affected countries. The administration has stated that it will allow entry to workers who have accepted an offer of employment from a company in the United States. Employers and their representatives must continue to take due care to show that the employment relationship is bona fide, “formal, documented [and] formed in the ordinary course” rather than for purposes of evading the travel ban. Employees applying for a visa after accepting a new job offer should be prepared to explain to the consular officer how they received the job offer, what their job duties will be, and how they are qualified for the job.

The Trump administration has also clarified that students who have already been admitted to a US educational institution are exempt from the ban, as are lecturers invited to address an audience in the US. An applicant for an I visa employed by foreign media may also be exempt if that foreign media organization has a US-based office.

Self-petitioning immigrants, including O-1 individuals with extraordinary ability, are at greater risk of being excluded under the ban if they cannot show a bona fide relationship to a US entity. If the O-1 applicant does not have a bona fide job offer or other relationship with an entity such as a university, they may need to apply for a waiver.

People who are subject to the ban but otherwise eligible for a visa can request a waiver, which consulates will decide on a case-by-case basis. To grant a waiver, the consular officer must be satisfied that denial would cause “undue hardship,” the applicant does not “pose a threat to national security,” and that the applicant’s entry is “in the national interest.” The administration has not announced any specific procedure for requesting the waiver, or guidelines for how consular officers are expected to apply this standard.

It is not yet clear how the administration will treat business visitors applying for short-term B-1 visas to attend conferences or trainings in the United States, without a longer-term relationship with a US company or organization.

What could change over the summer?

Federal judges will continue to hear challenges throughout the summer to the Trump administration’s interpretation of the Supreme Court’s guidance. The courts could offer further clarity about whom the administration can exclude, especially for situations that are currently ambiguous such as B-1 business visitors. The administration could also revise its guidelines at any time.

President Trump could also decide to withdraw Travel Ban 2.0 entirely at any time. If he does this, immigration from the affected countries would resume as normal, unless President Trump attempts to issue a new Travel Ban 3.0, surely prompting immediate and aggressive litigation.

What could change when the Supreme Court considers the case again in October?

The Supreme Court will hear oral argument on this case in October, and will likely issue a decision within a few weeks or even days.

The Court still cannot rule on whether the travel ban is ultimately legal. The only issue presently on appeal is whether the travel ban should continue to be “on hold” while lower courts consider whether the ban is legal. Litigation on the underlying issue could drag on for years, and could reach the Supreme Court again.

The Court may decide to leave its June decision in place, and could offer further clarification. The Court could instead decide to allow the full travel ban to go into effect (as Justices Thomas, Alito, and Gorsuch wanted to do in June). The Court could change which pieces of the ban go into effect. The Court could also decide to put the entire ban back “on hold,” thus ending the summer’s arguments about “bona fide relationships.”

The Court may also decide that the whole case is moot, due to confusion in the language of the executive order about when it goes into effect. The initial language of the March 6 executive order specified that it would apply for 90 days beginning on March 16. The Court specifically requested that the parties address in their arguments whether the ban thus expired on June 14. If the Court decides that Travel Ban 2.0 already expired, Trump may re-issue Travel Ban 2.0 with new dates. He could also formulate a new ban to address the Supreme Court’s substantive concerns, or he could give up entirely and abandon the prospect of a travel ban to focus on other priorities.

What can employers do to minimize disruption to their business in this uncertain climate?

When an employee from one of the affected countries wishes to travel outside the United States, employers should seek legal counsel to make sure they have up-to-date advice about how the ban could apply to the employee, and what could change suddenly while the person is outside the country.

Employers can also speak out, sharing stories with media and elected representatives about how their business is affected by the chaos and uncertainty of the travel ban. Employers whose operations have been affected should consider filing or joining lawsuits challenging the ban.

Employees with lawful permanent residence (green cards) are least likely to be affected by any future travel ban. Employers should consider sponsoring any eligible employees for employment-based green cards, or supporting employees in seeking green cards through other routes such as family-based petitions or asylum.

Lily Axelrod, Immigration Attorney
Siskind Susser PC