U.S. Supreme Court Upholds Travel Ban

July 3, 2018

On June 26, 2018, the U.S. Supreme Court ruled in favor of the Trump Administration in the federal lawsuit Trump v. Hawaii and upheld the “travel ban” that restricts travel for eight designated countries to the United States, six of which are Muslim-majority countries. In the 5-4 decision, the majority held that the President has the broad authority under the Immigration and Nationality Act (INA) to suspend entry of nationals from certain countries if such entry would be detrimental to the interests and security of the United States. The ruling highlights the Court’s traditional judicial deference to the executive branch’s power over foreign policy and national security matters. Despite the Court’s acknowledgement of the evidence suggesting that the travel ban is rooted in animus toward a particular religion based on the President’s anti-Muslim statements before and after his inauguration, the majority reversed the lower federal courts’ decisions and found the travel ban constitutional, stating that the travel ban is facially neutral toward religion and that, on balance, the underlying policy is “plausibly related” to the Trump Administration’s stated national security objective.

The Court’s ruling in Trump v. Hawaii follows months of litigation challenging the President’s authority to issue a travel ban that seemingly targets nationals from Muslim-majority countries. Enforcement of the first two versions of the travel ban (issued through Executive Orders signed on January 27, 2017 and March 6, 2017) which imposed 90-day travel restrictions for Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen) was temporarily blocked through separate nationwide injunctions issued by federal appeals courts on the finding that the two travel bans unconstitutionally discriminated against Muslims. The third iteration of the travel ban, set forth in the September 24, 2017 Presidential Proclamation “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into The United States by Terrorists or Other Public-Safety Threat,” however, removed any reference to religion and added two non-Muslim countries -- North Korea and Venezuela -- to a new list of restricted countries: Chad, Iran, Libya, Somalia, Syria, and Yemen. Unlike the previous versions, the travel restrictions vary per country with indefinite enforcement until the designated countries can satisfy the Department of Homeland Security’s baseline criteria for screening and vetting individuals traveling to the United States. Such review of the designated countries’ compliance shall be conducted every 180 days. Although the third travel ban met a similar fate in the federal appeals courts, the U.S. Supreme Court stayed the preliminary injunctions pending its decision and has permitted full enforcement of the travel restrictions since December 4, 2017.

What the Supreme Court Decision Means for Foreign Workers

At present, the travel ban under the Presidential Proclamation applies only to seven of the eight designated countries. On April 13, 2018, Chad was removed from the list for sufficiently meeting the Government’s baseline criteria. For nationals from the remaining designated countries (Iran, Libya, North Korea, Somalia, Syria, Venezuela and Yemen), the travel ban will continue to be fully enforced. U.S. lawful permanent residents from the designated countries, as well as dual citizens from the designated countries who use a passport from a non-designated country, remain exempt from the travel restrictions. In addition, waivers are available on a case-by-case basis under certain criteria for foreign nationals who have been previously admitted to the United States for work or school and seek to reenter to resume that activity, or who have sufficient business or professional obligations, or close family ties, in the United States. Unless otherwise exempt from the travel ban or granted a waiver, affected nationals will be ineligible for a visa and entry into the United States indefinitely. Please contact our office should you have additional questions on how the travel ban applies in a specific situation.

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