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Trump Travel Ban: Skepticism at the U.S. Supreme Court

Trump Travel Ban: Skepticism at the U.S. Supreme Court

Our Firm has a critical update on the Trump Travel Ban, which aims to keep certain people from Iran, Libya, Somalia, Sudan, Syria and Yemen from coming into the United States.

On June 26, 2017, the U.S. Supreme Court agreed to take up on appeal two lower court cases, Trump v. IRAP and Trump v. Hawaii. The Supremes plan to hear the case in October 2017.

More importantly, the Supreme Court has already looked at the lower courts’ temporary injunction against the travel ban. For the time being at least, Trump can now bar people from the affected six countries with no credible claim of a bona fide [family] relationship with a person or entity in the United States.

The American Immigration Lawyers Association has provided a useful analysis on the Supreme Court’s decision.

When does the partial travel ban go into effect?

The reinstated portion of the ban will go into effect June 29, 2017.

Who from the Affected 6 are NOT affected by the travel ban under the Supreme Court’s partial injunction?

  • U.S. permanent residents, people granted asylum, those already admitted as refugees, travelers on advance parole, and people granted withholding of removal and/or Convention Against Torture Protection
  • Diplomats and dual nationals with carrying a non-Affected 6 nationality
  • Business Visas (H, L, E, I, O, P, Q, R, and Employment-Based Immigrant Visas), though it’s unclear if self-petitioning EB-1 holders and National Interest Waiver Immigrants must also show a bona fide relationship to a U.S. entity.
  • People with family-related visas (K, V, and Family-Based Immigrant Visas)
  • Students and Trainees (F, M, J)
  • Visitors for Business (B-1), who can show a “formal, documented” relationship with a U.S. entity “formed in the ordinary course” of business.
  • Visitor for Pleasure (B-2), who can show a close family relationship to U.S. family members. The Supreme Court cited “spouse” or “mother-in-law” as acceptable, but did not clarify whether cousins or grandchildren would qualify.

For those nationals of the Affected 6 applying for visas at a U.S. consular post abroad, it appears that the visa applicant would be required to establish at the consular interview a bona fide relationship with a close family member or business or organization in the United States.

For Affected 6 refugees, many already have close family members in the U.S. sponsoring their admission. For those who do not, an argument could be made that the refugee’s ties to a church or religious organization sponsoring admission to the U.S. would qualify as a bona fide relationship to an entity in the U.S.

Although the immigrant advocacy community is dismayed by the Supreme Court’s decision to partially lift the Trump Travel Ban, many remain optimistic. As put by Prof. Corey Brettschneider, to enjoin an executive order, the court must be convinced that the policy has a “substantial likelihood” of being unlawful. By keeping in place some of the injunctions against the Trump Travel Ban pending oral argument this autumn, the Supremes were telegraphing that Trump went too far. In other words, the Supreme Court would not have kept most of the travel ban on ice, unless it felt that those parts were probably illegal.

If you believe the travel ban affects you, it's critical to consult with an experienced immigration lawyer as soon as possible. Events are moving quickly; it's best to plan ahead and be prepared.

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