The United States Supreme Court, in a "per curiam" (by the court) decision, has handed the Trump Administration a victory in its long-running desire to implement a travel ban on nationals of six Muslim-majority countries and all refugees. On Monday, June 26, 2017, the Court agreed to permit partial enforcement of Executive Order 13780, amounting to a travel ban with a narrowed scope.
The travel ban impacts nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen and all those seeking admission to the United States as refugees. Per the ruling, nationals of the six impacted nations face a 90-day suspension of admission to the United States, unless they can demonstrate a "bona fide relationship with a person or an entity in the United States." Tourists from the six nations without close family in the United States will undoubtedly be barred from entering.
Perhaps the biggest question left open by the ruling is what the impact will be on refugees. For a period of 120 days, refugees who have not already been issued a visa and do not have a "bona fide relationship with a person or entity in the United States" will be barred from entry.
Refugees generally do not have offers of employment in the U.S. prior to being settled, and many lack close family in the U.S. For most, their only real relationship with the U.S. is with the refugee resettlement agencies who provide settling and support services. Every refugee entering the U.S. has a resettlement agency they are working with, but such a relationship may not satisfy the "bona fide" test laid out by the Court.
What does this mean for employers?
As was the case with the implementation of the first executive order travel ban, the decision is likely to bring confusion, delays, and frustration at U.S. ports of entry and at U.S. Consulates abroad, as the U.S. Department of Homeland Security is currently in consultations with the State and Justice Departments as to how to implement the decision. Many will recall the chaos and confusion that ensued after President Trump's first executive order on immigration was briefly implemented, before being stayed by lower courts.
The Supreme Court's decision is likely to add increased anxiety to an already tense foreign national community. Foreign nationals are facing increased scrutiny on visa applications filed at U.S. Consulates abroad, continued delays in adjudications by the United States Citizenship and Immigration Services here in the U.S., and continued inconsistencies in adjudications of work authorization requests and in adjudications of immigrant visa petitions ("Green Card" cases).
For the next ninety days, the entry of any foreign nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen is suspended. However, the suspension does not affect the foreign nationals from these countries who have a "credible claim of a bona fide relationship" with a U.S. employer or a family member in the United States. Those U.S. employers who are seeking to bring workers from one of the countries subject to the President's executive order will have to show that they have a "formal, documented, and formed in the ordinary course" relationship with such workers. This includes workers who have accepted an offer of employment from an American company in the ordinary course of business.
According to the dissent, the next 90-days may bring with them a "flood of litigation" as the government and private individuals and employers attempt to determine what constitutes a "bona fide relationship," who has a "credible claim" to that relationship, and whether the claimed relationship was formed in the ordinary course or to avoid the travel ban. Employers with employees or potential employees in the above countries should monitor such litigation as it may fill in the gaps left by the test articulated by the Supreme Court.
The Supreme Court will give a closer consideration to the case in October, when they will hear oral arguments in the matter, but by that time the 90-day suspension may already be over, which could moot the entire dispute. For now, employers should focus on documenting any employment or prospective employment relationship they have with the foreign nationals from the above six countries to make sure that they can establish a "bona fide" employment relationship when seeking to bring such worker into the United States.
If possible, foreign national employees are advised to avoid traveling abroad for the next 90 days, particularly if there is a need to renew their visa stamps before seeking re-admission. Entry to the U.S. for the foreseeable future will continue to be an unpredictable and uncomfortable experience for many.
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