On June 26, the Supreme Court issued a decision partially lifting a set of lower court injunctions preventing enforcement of President Trump’s controversial executive order barring U.S. entry to foreign nationals from a number of foreign countries with majority Muslim populations. Importantly, the Court’s June 26 ruling and a flurry of legal developments since then should not significantly impact U.S. employers that employ foreign nationals from any of the affected countries.
The ruling by the High Court in Trump v. International Refugee Assistance Project, No. 16-1436 (U.S. June 26, 2017), partially lifted injunctions on the travel ban that had been issued by federal courts in Maryland, New York, and Hawaii. Although the government had asked the Court to allow the ban to go into effect without restrictions, the Court stayed the injunctions only with respect to “foreign nationals who lack any bona fide relationship with a person or entity in the United States.” In so ruling, the High Court also announced that it would consider the broader issue of the president’s authority to issue the ban at its upcoming October term.
In the wake of the ruling, the State Department implemented written guidelines regarding what constitutes a bona fide relationship. That guidance was immediately challenged by Hawaii as too restrictive, and on July 13, 2017, the federal trial court in Hawaii agreed, imposing a nationwide injunction barring implementation of the State Department’s interpretation. The Supreme Court on July 19 denied the government’s request to intervene and further clarify its June 26 ruling with regard to the meaning of a close family relationship, in essence allowing the district court’s ruling on that issue to stand until the Supreme Court takes up the broader presidential authority issue in October.
With regard to the significance of these developments to employers, because neither the High Court’s partial reinstatement of the travel ban nor the State Department’s challenged guidance affects foreign nationals who have accepted a job offer with a U.S. employer — by definition these individuals have a bona fide relationship with an entity in the U.S. — the impact on employers should be minimal.
A copy of the Supreme Court’s June 26 ruling is available here.
Members of the Center for Workplace Compliance (CWC) can read more here.