Immigration Law Insights

he United States Supreme Court recently stayed portions of two (2) U.S. Circuit Court opinions and allowed parts of President Trump's travel ban to go into effect. Foreign nationals from Iran, Libya, Somalia, Sudan, Syria, and  Yemen may be affected by the Supreme Court's order.

The Supreme Court's order relates to the second of two (2) Executive Orders ("EO"), both of which banned nonimmigrants from several predominately Muslim countries from entering the United States for ninety (90) days. The first EO was blocked by federal courts, and the President decided to rewrite the order rather than petition the Supreme Court for review.  As with the first EO, federal courts issued nationwide preliminary injunctions that blocked the second EO's implementation. Rather than draft a third EO, the Trump Administration asked the Supreme Court to review the lower courts' orders. The order recently issued by the Court granted the President's petition for review and placed a limited stay on the lower court's orders until the entire appeal could be heard this fall.

The Court's order effectively blocks the EO's implementation with respect to those with a "credible claim of a bona fide relationship with a person or entity in the United States." Citizens of affected countries without such a relationship will now be subject to the ban. The Court noted that individuals from an EO affected country who wish to visit a family member in the United States meet the required test. Persons with an accepted offer of employment with an American entity and those with an invitation to address an American audience are also deemed by the Court to have the required relationship.

Moving forward, employers of foreign nationals from EO affected countries should ensure the employer-employee relationship is well documented before the foreign national travels abroad and/or seeks to enter the United States. The Supreme Court's Order makes clear the relationship must be formal, documented, and not formed solely for the purpose of avoiding the EO's restrictions. Employers should equip their employees with letters confirming the employment­ relationship as well as recent paystubs.

Business Visitors (B-1/B-2 visa) could face more scrutiny than a nonimmigrant employment visa holder when attempting to enter the United States because Business Visitors lack a formalized employment relationship with a United States entity.  Ultimately, whether the foreign national will be permitted entry may largely depend upon documentation that can demonstrate a history of interactions between the foreign national and the United States entity.

The travel restrictions will be in place for ninety (90) days. 

For the full review of this case, click here.