Based on two lower courts’ findings, President Donald Trump’s revised “travel ban” Executive Order (EO) has been enjoined from taking effect since May. Today, on the last day of the current court term, the U.S. Supreme Court agreed to determine whether the EO’s focus on primarily Muslim countries is in violation of the First Amendment and whether the EO exceeds the President’s authority granted by the Immigration and Nationality Act. The Court will hear that case in the next term, which begins in October.
Meanwhile, the Court also addressed and limited the existing injunctions on the EO. In particular, the EO’s provisions barring entry of persons from Iran, Libya, Somalia, Sudan, Syria, and Yemen may take effect, but only with respect to persons “who lack any bona fide relationship with a person or entity in the United States.” (Trump v. International Refugee Assistance Project.)
The injunctions do remain in place with respect to parties that are “similarly situated” to those who initially challenged the EO in lower courts in Hawaii and Maryland. Specifically, the EO may not be enforced “against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.”
Meanwhile, all other foreign nationals will be subject to the provisions of the EO. The Court reasoned that denying entry to these individuals would not burden any American party since, arguably, no American has a relationship with the individual seeking entry that would rise to the level of hardship.
What Is a Bona Fide Relationship?
To provide guidance on what may constitute such a bona fide relationship, the Supreme Court turned to the lower cases, noting that “for individuals, a close familial relationship is required. A foreign national who wishes to enter the United States to live with or visit a family member … clearly has such a relationship. As for entities, the relationship must be formal, documented, and formed in the ordinary course …,” such that students who have been admitted to an American university would have such a relationship. So, too, notes the court, would a worker who accepted an offer of employment from an American company.
On the other hand, an individual who demonstrably enters into a new relationship with an American entity solely to avoid the enforcement of the EO would be barred from entry. As an example, the Court highlights the action of a nonprofit activist group initiating contact with foreign nationals from the targeted countries, adding those individuals to client lists, and then using that “relationship” to gain entry for those individuals.
Presumably most employers who would be affected by the provisions of the EO would be able to demonstrate the required bona fide relationship. However, to the extent that doing so may require additional documentation, paperwork, and administrative delay, employers should be aware of and prepared to handle these potential challenges—over the next 90 days and, perhaps, until the underlying case is decided in the next Court term.
The Court also permitted (while noting that the action is likely already underway) the EO’s directive that the Secretary of Homeland Security conduct a global review to determine whether foreign governments provide adequate information about nationals applying for United States visas.
|Holly K. Jones, JD is a Senior Legal Editor for BLR’s human resources and employment law publications. She understands the existing and emerging needs and challenges of human resources professionals thanks to several years of experience managing, writing, and editing key legal and compliance publications for BLR. Prior to joining BLR, Ms. Jones worked for the Tennessee Legislature’s Office of Legal Services.
She graduated magna cum laude and Phi Beta Kappa with a BA in English Rhetoric and Writing, Political Science, and Psychology from the University of Tennessee in Knoxville, Tennessee, where she also received a 2001 Citation for Extraordinary Academic Achievement. She received her law degree from Vanderbilt University Law School and is licensed to practice law in Tennessee.
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