On December 4, 2017, the U.S. Supreme Court issued two orders (available here and here) that allow the Presidential Proclamation of September 24, 2017, otherwise known as the “Travel Ban,” to go into effect while appeals continue in the lower courts.  The practical effect of SCOTUS’s actions is to reinstate this version of the Travel Ban fully.  See our earlier blog entry, New Presidential Proclamation Modifies Travel Ban; SCOTUS Reacts, for a full explanation of which countries are targeted in the revised Ban and which citizens of those countries are subject to U.S. travel restrictions under the Ban.

In October, a federal judge in Maryland granted a temporary injunction preventing the revised Ban from going into effect against those who have a bona fide relationship with a U.S. person or entity.  Another federal court, in Hawaii, also blocked implementation of the Ban.  However, the government appealed those rulings to the federal appellate courts for the Fourth and Ninth Circuits, respectively, where the issues remain pending.  In November, the government went higher still, asking the Supreme Court to allow full enforcement of the Ban while the Fourth and Ninth Circuits consider the government’s appeals of the lower courts’ injunctions.  SCOTUS has now granted that request, although, as each order specifies, Justices Ginsburg and Sotomayor were not in favor of granting.  Both federal appellate courts will hold oral arguments this week, and both have agreed to expedite their decisions so that the Maryland and Hawaii cases may move forward quickly.

If either or both Circuits eventually rule against the government, thereby leaving the lower courts’ injunction in place, the government could ask the Supreme Court to review those rulings.  If that happens and SCOTUS refuses to hear the government’s request for review, then SCOTUS’s orders will automatically terminate, thereby putting the Travel Ban on hold yet again, until final decisions are made in the Maryland and Hawaii federal courts.

Following the Supreme Court’s recent decision to allow the partial implementation of Executive Order 13780, “Protecting the Nation From Foreign Terrorist Entry Into the United States” (“EO”), the State Department issued a cable to all diplomatic and consular posts instructing them how to implement the EO, which begins tonight at 8:00 PM EDT.  The ban applies to aliens from Iran, Libya, Somalia, Sudan, Syria and Yemen.  Consular officers are instructed to first determine if a visa applicant meets the general visa issuance requirements without regard to the EO and, if so, then to make a determination if the applicant is exempt from the EO’s suspension of entry provision.  If the applicant is not exempt, the officer must determine whether the applicant qualifies for a waiver in order to obtain a visa.

The EO’s suspension of entry provision does not apply to an applicant with a credible claim of a bona fide a relationship with a person (close family members) or entity in the United States.  Personal relationships with “close family members” include:

  • parent (including parent-in-law)
  • spouse
  • child
  • adult son or daughter
  • son-in-law/daughter-in-law
  • sibling, whether whole or half (includes step relationships)
  • fiancé(e)s

“Close family” does not include:

  • grandparents
  • grandchildren
  • aunts/ uncles
  • nieces/nephews
  •  cousins
  • brothers-law/ sisters-in-law
  • and any other “extended” family members.

A relationship with a “US entity” must be formal, documented and “formed in the ordinary course, rather than for the purpose of evading” the EO.  Students accepted to US institutions and workers sponsored for work-authorized visas should still qualify for visas, provided that they are otherwise admissible.  Those entering in relationships to avoid the EO would not qualify.

Those affected by the EO applying for immigrant visas abroad will still be interviewed.  Those not exempt from the EO who do not qualify for waivers will be refused, but Visa Office advisory opinions should be requested by the officers, which may provide relief.

The EO also lists other exemptions and waivers, and can be found here.We suggest that you consult with counsel if you, a relative, an employee, or a prospective employee may be affected by the ban.

We will continue to monitor the situation, and update our blog with further developments and any legal challenges that arise.

It’s been a week since the Ninth Circuit unanimously upheld the temporary restraining order against the Trump administration’s Executive Order known as the “Travel Ban”.   Shortly after the Ninth Circuit’s ruling, President Trump said that new security measures were imminent, however, no new executive orders have been issued.  While waiting for the next attempt at a legal travel ban or a way to revive the prior one, those born in one of the countries mentioned in the original ban (Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen) and those from other predominantly Muslim countries may want to reconsider overseas travel at this time.  President Trump explained why there was no warning before the travel ban, so we expect the next one to be announced without warning as well.  The next one could, again, leave individuals stuck abroad for undetermined lengths of time.  Given what happened in various court cases, the administration will likely attempt to draft its new ban in a way that may prevent the courts from stopping the enforcement.

The Ninth Circuit has just issued a unanimous opinion upholding the Temporary Restraining Order against the Trump Administration’s Executive Order known as the “Travel Ban.” The 3-judge panel unanimously recognized that without the TRO, the states of Minnesota and Washington were likely to be harmed as parens patriae (i.e., legal protector) for their citizens, and also by damage inflicted on “operations and missions of their public universities and other institutions of higher learning,” and their “operations, tax bases, and public funds.”

Continue Reading Ninth Circuit Unanimously Rejects Reinstatement of Travel Ban

On April 15, 2015, the day its previous order was due to expire, the Federal District Court for the Northern District of Florida extended its permission for the Department of Labor to process H-2B wage and labor certification applications for another month, through May 15, 2015.

Continue Reading Federal Court Allows DOL To Continue H-2B Processing for Another Month in Pérez v. Pérez

As of March 5, 2015, U.S. Citizenship and Immigration Services (USCIS) has temporarily shut down its processing of H-2B petitions and the U.S. Department of Labor (DOL) has stopped accepting or processing applications for H-2B prevailing wages and temporary labor certifications due to a Florida federal court’s decision in Pérez v. Pérez.

Continue Reading USCIS and DOL suspend H-2B Processing Following Florida Court Order

U.S. District Judge Susan Bolton has enjoined the state of Arizona from implementing key provisions of its anti-immigrant law, which is set to take effect at midnight tonight.  Calling it a “substantial likelihood” that the law would lead to “wrongful arrest” of legal resident aliens, Judge Bolton ruled the State may not require police officers to check the immigration status of people they stop for other violations until courts decide whether the provision is permissible.  She also ruled the State may not require immigrants to carry immigration documentation or prohibit undocumented workers from soliciting employment in public places until those provisions are tested by the courts.

The 36-page injunction may be read here. We will post updates as available.

The Supreme Court’s docket for its 2009-10 term includes two key immigration cases that will affect immigrants’ access to legal counsel and the federal court system.  In Padilla v. Kentucky, which is set for October 13, the Court will decide whether a criminal defense attorney must advise a foreign-born client on how a criminal case will affect the client’s immigration status, and what remedies the client may seek if an attorney gives incorrect advice.  In Kucana v. Holder, which is set for November 10, the Court will decide whether federal appeals courts have jurisdiction to review certain decisions by the Board of Immigration Appeals.