Travel Ban 2.0 Partially Reinstated

Jun 27, 2017

On June 26, 2017, the U.S. Supreme Court partially reinstated President Trump’s 90-day travel ban for citizens and nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen.   Specifically, the Supreme Court reinstated the travel ban for foreign nationals of the designated countries who “lack any bona fide relationship with a person or entity in the United States.”   The Government is, however, still enjoined from enforcing its travel ban against foreign nationals who have “a credible claim of a bona fide relationship with a person or entity in the United States.”   In its decision, the Supreme Court explained that an individual with a “close familial relationship” with a person in the United States remains eligible for admission to the United States.   In addition, foreign nationals who have relationships with U.S. entities that are “formal, documented, and formed in the ordinary course” may also continue to travel abroad and enter the United States.   The Supreme Court explains that students from the designated countries who have been admitted to a U.S. college or university have a “bona fide relationship” with a U.S. entity and thereby remain exempt from the travel ban.   Similarly, a worker who has accepted an offer of employment from an American company would also be exempt from the travel ban and permitted to enter the United States.

Thus, foreign nationals from one of the six designated countries who were enrolled at a U.S. college or university or who were employed by a U.S. entity earlier this year when President Trump’s Executive Orders were issued are clearly not subject to the reinstated travel ban and therefore, can continue to travel abroad and return to the United States.   The Supreme Court’s decision does not, however, address whether individuals who seek admission to or are hired by a U.S. institution or entity after issuance of the Executive Orders and/or after the Supreme Court’s Order can establish the requisite “bona fide relationship” necessary to exempt them from the travel ban.   In other words, it is unclear when the required relationship must have been formed.   For example, would the reinstated travel ban apply to a foreign national from one of the designated countries who enrolls at a U.S. university this summer and seeks to enter the United States in August to attend classes in the fall?   Unfortunately, the Supreme Court’s decision does not discuss this issue.

The U.S. Department of Homeland Security has indicated that it will provide additional details on implementation of the travel ban, in accordance with the Supreme Court’s decision, after consultation with other federal agencies.   Until additional information is released, we recommend that foreign nationals from the designated countries who are present in the United States refrain from traveling abroad if possible.   We will continue to monitor implementation of the travel ban pursuant to the Supreme Court’s Order, and will provide further guidance when available.

For additional information on President Trump’s Executive Orders establishing the travel ban and other related directives, please see our prior posts, available here and here.