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What US Employers Should Know About the Travel Ban

HR Column
Earlier this year we looked at the terms and impact of Executive Order No. 13769 on cross-border employee mobility and its impact on employers’ ability to hire, transfer, and compete effectively for talent. In this article we revisit the topic in light of the most recent Supreme Court ruling.

US President Trump’s administration issued two executive orders to restrict individuals from specific countries from traveling to the United States. Both were blocked by various federal courts. The first, issued on January 27, barred citizens from seven countries — Iraq, Syria, Sudan, Iran, Somalia, Libya, and Yemen — from entering the United States for 90 days. It also suspended the refugee program nonimmigrants from entering into the United States for 120 days.

The second executive order, issued on March 6, 2017, amended the first by, among other things, excluding Iraq from the barred countries, limiting the ban against Syrian refugees to 120 days (rather than indefinitely), and exempting green card holders and some dual-national citizens. The Ninth Circuit put the order on hold on grounds that the president overstepped the power given to him by Congress, to regulate immigration.

Supreme Court action

On June 26, in a per curiam decision, the US Supreme Court granted certiorari agreeing to review the lower courts’ challenges to Executive Order No. 13780 when they return from their summer break in October 2017. At a guest lecture in October 2016 that was part of the Stein Lecture Series at the University of Minnesota, US Supreme Court Justice Sonia Sotomayor pointed out that one of the criteria determining whether the Supreme Court hears a case is whether there is a circuit split among the federal courts; an issue that presents a gray area of law and upon which reasonable judges can reach different conclusions.

While the federal circuit courts consistently denied enforcing the ban, their reasons for taking this position have raised various issues, which are likely to be reviewed by the Supreme Court:

1.   The extent to which some parties have standing to contest the executive orders. Some individuals have family members who want to travel to the United States and are impacted by the travel ban. In the case of the state of Hawaii, which is a plaintiff in one case, the Ninth Circuit held it had standing because the executive order would prevent students and faculty from coming to the state’s university. The Trump administration disputes both of these assertions.

2.   Whether, as the Fourth Circuit held, the March 6 order violates the Constitution’s establishment clause. If your constitutional law class is a distant memory, the First Amendment's Establishment Clause prohibits the government from taking actions that unduly favor one religion over another. It has been widely publicized that in developing Executive Order 13769, then-presidential candidate Trump sought a legal way to execute a “Muslim ban,” and the Supreme Court may wrestle with the question as to what extent this matters if they find Executive Order No. 13780 to be neutral on its face.

3.   Whether the Ninth Circuit’s conclusion that the executive order went beyond the president’s authority under federal immigration laws was erroneous. According to the government’s argument, federal law grants the president “exceedingly broad discretion” to suspend visas for foreign nationals when he believes that allowing entry into the United States would be “detrimental” to the country’s interest. The government argues that the Ninth Circuit erred in requiring the president to make specific factual findings to that effect.

What portions of the ban are in force

Under the Supreme Court’s opinion, the ban on visitors from Iran, Libya, Somalia, Sudan, Syria, and Yemen can be enforced. The court also allowed the 120-day ban on refugees on a limited basis. However, the court created an exception for foreigners “with a credible claim of a bona fide relationship with a person or entity in the United States.” The court went on to explain the kinds of relationships people from the six countries must demonstrate to obtain a United States visa:
“For individuals, a close familial relationship is required,” the court said. For people who want to come to the United States to work or study, “the relationship must be formal, documented, and formed in the ordinary course, not for the purpose of evading” the travel ban.
In essence, the court recognized the existence of a “bona fide relationship,” where a foreign national wants to visit or live with a family member, and for students from the designated countries who were admitted to a US university. Thus, part of the travel ban will be in effect until the court rules on the federal government’s appeals.

Impact on employers

According to a memorandum issued by President Trump, the limited travel ban allowed by the Supreme Court went into effect on June 26, 2017. The language in the Supreme Court’s opinion applies the ban “with respect to foreign nationals who lack any bona fide relationship with a person or entity in the United States.” This language suggests workers that can demonstrate a bona fide relationship with a US employer are exempt from the travel ban. However, employers should still expect increased scrutiny and rigor around verification of employees from the target countries.

Sidebar references

Navigating New Rules for Entry into the US

Travel Ban Timeline

Homeland Security FAQs

US Travel Alerts

About the Author

Spiwe PierceSpiwe L. Jefferson is general counsel of ChristLight Productions Ltd., LLC, Lifetime Fellow of the American Bar Foundation, and 2016 Diversity MBA Top 100 under 50 Diverse Executive Leaders. She is a member of the ACC employment and labor, law department management, intellectual property, and litigation sections.

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