SCOTUS: Muslim Ban Allowed for Those With No Bona Fide Relationship to US


In March, President Trump issued a new version to Executive Order #13780 (EO), which banned individuals from 6 countries – Iran, Libya, Somalia, Sudan, Syria, and Yemen – from entering the US for 90 days.  This had been dubbed in the media as the Muslim Ban. Suits were filed to halt the enforcement of the EO. The Federal District Courts granted the preliminary injunctions. The Court of Appeals for the Fourth Circuit and the Ninth Circuit then upheld the preliminary injunctions.

On June 1, the government filed a petition for certiorari, seeking review of the Fourth Circuit decision. Yesterday, SCOTUS issued a decision regarding the preliminary injunctions and granted the certiorari to hear the cases during the first session of October Term 2017 (another blog will be posted at that time). Read the entire SCOTUS decision here.

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SCOTUS has decided to partially grant the stay of the injunctions to allow the enforcement of section 2(c) of EO, with respect to foreign nationals from the six countries who lack any bona fide relationship with a person or entity in the US.

However, the injunction will stay in place with respect to the respondents in the cases at issue here:  POTUS v. IRAP and POTUS v. Hawaii, and those foreign nationals that are similarly situated. In the case of POTUS v. Hawaii, the students that have been accepted into the University of Hawaii will be allowed into the US, because not allowing the students in will harm the State. Also in the case of POTUS v. Hawaii, Dr. Elshikh and those like him would not be affected by the EO because the law cannot delay families of US Citizens and Legal Permanent Residents from coming into the US as that would cause hardship to those lawfully in the US. The same has been applied to Doe and those similarly situations in the case of  POTUS v. IRAP. 

As such, for individuals applying for visas to enter the US, those that can demonstrate a “close familial relationship” with an US Citizen and Legal Permanent Resident will be allowed in. For those that are seeking to enter the US in order to work for or with a US entity, the relationship must be “formal, documented, and formed in the ordinary course” of business. In other words, the individual employee would not be allowed to enter if the relationship was formed for the purpose of evading the EO. For example, a worker who has accepted an offer of employment from an employer that has gone through the requirements of a PERM Labor Certification Application (LCA) will not be turned away.

SCOTUS has suggested to the Trump Administration to implement a case-by-case waiver system for the benefit of those who has connections to this country. As an immigration attorney,  while SCOTUS means well, this “waiver system” could lead to more inconsistencies, at least in the immediate term, if not much longer. As immigration officers and CBP agents are trained, they will be using their discretion to determine who has established bona fide relationships to US residents.

If you have a beneficiary that is seeking to enter the US from one of the affected countries, be sure to schedule a consultation with us before taking further action. In the case of an employee beneficiary, be sure to consult us and make sure that the recruitment and the filings with the Department of Labor have been completed correctly.