by Tammy Binford and Holly Jones
The U.S. Supreme Court’s decision to allow a limited form of President Donald Trump’s “travel ban” to take effect means people from the affected countries who work for employers in the United States are probably exempt from the ban. But the decision doesn’t clear up all questions for those employees and their employers, according to attorneys following the employment angle of Trump’s Executive Order affecting travelers to the United States from six Muslim-majority countries.
“While Court watchers and legal scholars find the decision a source of fascinating speculation, employers need to know what to do regarding international travel for their employees from the six ‘banned’ countries,” says Lori Chesser, contributor to Iowa Employment Law Letter and immigration department chair at Davis Brown Law Firm in Des Moines, Iowa. “The easy answer is to avoid international travel.”
If that’s not possible, Chesser says, the travel ban is still enjoined (meaning it’s not in effect) if an individual has a “bona fide relationship with a person or entity in the United States.”
Trump issued the first travel ban order shortly after taking office in January. That order included seven countries: the six in the current order—Iran, Libya, Somalia, Sudan, Syria, and Yemen—along with Iraq. A court injunction quickly thwarted the order, but Trump issued a modified version in March. Another court injunction has kept the second order from going into effect since May.
But on June 26, the last day of the Supreme Court’s current term, the Court agreed to hear arguments on whether the new version of the order violates the First Amendment to the U.S. Constitution and whether it exceeds Trump’s authority under the Immigration and Nationality Act (INA). The Court won’t hear the case until its next term, which begins in October.
Meanwhile, the travel ban will take effect for travelers from the six countries unless they can document that they have a bona fide relationship that entitles them to entry into the United States. The Court reasoned that denying entry to individuals without such a relationship would not burden American parties since arguably no American has a relationship with individuals seeking entry that would rise to the level of hardship.
What constitutes a bona fide relationship?
To provide guidance on what may constitute a bona fide relationship, the Supreme Court turned to the lower courts. The Court noted: “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.” For example, students who have been admitted to an American university would have such a relationship. The Court noted that a worker who accepts an offer of employment from an American company would have such a relationship, too.
On the other hand, an individual who demonstrably enters into a new relationship with an American entity solely to avoid enforcement of the order would be barred from entry. For example, the Court highlighted the actions of a nonprofit activist group initiating contact with foreign nationals from the targeted countries, adding those individuals to client lists, and using that “relationship” to gain entry for those individuals.
Presumably, most employers affected by the provisions of the Executive Order will be able to demonstrate the required bona fide relationship. However, doing so may require additional documentation and result in administrative delays. Thus, employers should be aware of and be prepared to handle potential challenges over the next 90 days (the term of the temporary travel ban imposed by the Executive Order) and perhaps until the underlying case is decided in the Court’s next term.
Decisions about what constitutes a bona fide relationship will be made at a consulate or port of entry “by people on the ground,” Chesser says. “How they view the nature of the relationship is unpredictable. No judicial review is available for decisions made outside the U.S., including at airports.”
Chesser says some commentators believe the case will be dismissed because the temporary ban will have expired before the Court’s next term. “We will have to wait and see whether the president will decide to issue another Executive Order or whether the agencies involved will implement other changes to effectively extend the ‘ban.’ Many believe that ‘extreme vetting’ is already being implemented at many consulates worldwide, accomplishing the goals of the Executive Order,” she says.
Elaine C. Young, an editor of Utah Employment Law Letter and attorney with Kirton McConkie in Salt Lake City, Utah, agrees that employees already in a formal, documented relationship with an American employer, including someone who has accepted an offer of employment with an American company, should be able to enter the country. “It would be more of a challenge if the employer was inviting a candidate to interview in the United States,” she says.
In that case, “we don’t know yet” if the U.S. State Department will permit job candidates to seek the case-by-case waivers described in the Executive Order, Young says. “But for those companies that have employees traveling abroad to renew visas, at least . . . until the Supreme Court makes a decision on the merits, these employees should be able to travel.”