Is the Travel Ban Back On? Supreme Court to Decide Its Fate Next Term

On June 26, 2017, the Supreme Court of the United States agreed to hear the appeals over the president’s revised travel ban against certain foreign nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen during the first session of the Court’s October 2017 term. In issuing the opinion, the Supreme Court partially granted the government’s request to reinstate the travel ban, but limited the scope through a “bona fide relationship” test. Specifically, the Court’s decision allows the travel ban to go into effect for the above-mentioned foreign nationals, but only if they lack any “bona fide relationship with a person or entity in the United States.”

Although the government has not yet issued guidance on the criteria for satisfying the bona fide relationship test, the Court did provide several examples of situations in which a sufficient relationship likely exists. These scenarios include: a foreign national who has “a close familial relationship” with an individual in the United States;  a worker who has accepted an offer of employment from a U.S. company or a lecturer who has been invited to address a U.S. audience; and a student who has been admitted to a U.S. university. If the relationship is with a U.S. entity, it must be “formal, documented, and formed in the ordinary course” of business.

The limited reinstatement of the travel ban is anticipated to take effect on or about June 29, 2017. In a statement, the Department of Homeland Security has advised that it will provide additional details on implementation of the executive order and such implementation will be done with “clear and sufficient public notice, particularly to potentially affected travelers, and in coordination with partners in the travel industry.”

Ogletree Deakins will continue to monitor developments with respect to the litigation surrounding the travel ban and will post updates as additional guidance becomes available.