United States: Supreme Court Keeps Travel Ban Suspension in Place for Foreign Nationals with US Ties
Nationals of six restricted countries should not be subject to the travel ban if they have a credible and documented work, educational or family connection to a US person or entity, the Court ruled today. Those who do not have bona fide ties to the United States may be restricted from entering for the duration of the travel ban. The Court will consider the travel ban executive order in full in its next term.
The U.S. Supreme Court today decided to partially lift two injunctions against President Trump's March 6 travel ban executive order against certain nationals of Iran, Libya, Somalia, Sudan, Syria and Yemen and refugees from all countries. The Court will permit the Trump Administration to enforce the ban against restricted nationals and refugees with no bona fide ties to the United States; those who can show a connection to a person or entity in the United States may still be able to obtain a visa and enter the country. The ban will be in force for 90 days against nationals of the six restricted countries who do not qualify for an exemption and for 120 days against non-exempt refugees. The Administration could implement the ban as soon as Thursday, 72 hours after the Court's decision.
The Court reiterated that the Administration could proceed with a planned worldwide review of the visa security policies of foreign countries, in line with a recent Ninth Circuit decision. The Court will take up the President's March 6 executive order in full during its next term, which begins on October 1, 2017.
Today's decision narrows the class of individuals who will be subject to travel restrictions. The March 6 executive order had already exempted many foreign nationals from the ban, including US lawful permanent residents, dual nationals and holders of valid visas. However, nationals of a restricted country who are not already exempt - including Canadian permanent residents - must be prepared to show their US ties when applying for a visa or entry to the United States.
Who Is Subject to Travel Restrictions?
If you are a national of one of the six restricted countries, you are already exempt from travel restrictions by the terms of the March 6 executive order if you fall into one of the following categories:
- You are a US lawful permanent resident (green card holder);
- You are a dual national traveling on a passport from a non-restricted country; Canadian permanent residents are not exempt, however;
- You hold a valid, multiple-entry US visa and you are otherwise admissible to the United States;
- You are an applicant for adjustment of status with valid advance parole;
- You have been granted asylum in the United States; or
- You have been admitted as a refugee or you are a refugee whose travel has been formally scheduled by the US State Department.
If you do not fall within one of these groups, you may still be exempt from the ban under the terms of the Supreme Court decision if you are entering the United States to visit or live with a close family member; you have been admitted to study at a US school; or you have accepted an employment offer from a US entity. An invitation from a US entity for purposes of business travel may qualify, but that is not yet clear. If your qualifying relationship is to a US entity, you must show that the relationship is formal and was formed in the ordinary course of the entity's business, rather than simply to evade the travel ban. You must be able to document your bona fide ties to the United States and should expect to be closely questioned about your US ties by US consular and border officials.
The executive order also authorizes the Departments of Homeland Security and State to grant discretionary waivers of the entry ban where the denial of entry would cause hardship, the foreign national's entry is in the national interest and entry would not pose a threat to national security. However, the stringent criteria and lack of a clear application process suggest that waivers may be difficult to obtain.
Fragomen is closely monitoring the Administration's implementation of the Supreme Court decision and the executive order, and will provide further information as developments occur.
This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.