On May 25, 2017 the U.S. Court of Appeals for the Fourth Circuit upheld a lower court’s nationwide injunction against the Trump administration’s executive order (EO) suspending entry into the United States of foreign nationals from six designated countries: Iran, Libya, Somalia, Sudan, Syria, and Yemen. This ruling maintains the current status quo under which key provisions of the travel ban have been blocked. As a result, employees from the designated countries remain free to travel to and request admission into the United States.

The EO at issue in the case, “Protecting the Nation from Foreign Terrorist Entry into the United States,” is a revised version of the original executive order that had also encountered legal obstacles. Under the revised version of the executive order, the Trump administration had attempted to address some of the early objections to the original executive order by excluding certain foreign nationals from its scope, such as those who already had visas, or who were green card holders or dual nationals traveling on a passport from a non-designated country. Despite those changes, the revised EO, issued on March 6, 2017, met with challenges and legal objections similar to the original. Section 2(c) of the revised EO, “Temporary Suspension of Entry for Nationals of Countries of Particular Concern During Review Period,” was the central focus in this case.

While the court was not directly evaluating the constitutionality of the travel ban, the judges took a close look at the strength of the plaintiff’s Establishment Clause claim against the EO. The Establishment Clause prohibits the government from making any law respecting an establishment of religion. In defense of the EO, the administration has asserted a need to accord deference to the president’s actions taken to protect the nation’s security. The court, however, noted that the president’s authority cannot go unchecked, and included an examination of past statements made by President Donald Trump in its analysis.

Stating that the Trump administration’s travel ban was rooted more in the intent to bar Muslims from the country rather than in the government’s asserted national security interest, the court found that the public interest argued in favor of upholding the district court’s preliminary injunction.

Attorney General Jeff Sessions issued a statement confirming that the government intends to appeal the Fourth Circuit’s decision to the Supreme Court of the United States. A separate nationwide injunction against the EO is currently under appeal in the Ninth Circuit. Oral arguments were heard in that case on May 15, 2017, and a decision is pending. Because the case is still ongoing, this latest decision should not be considered a final determination of the EO’s fate.


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Ogletree Deakins has one of the largest business immigration practices in the United States and provides a wide range of legal services for employers seeking temporary business visas and permanent residence on behalf of foreign national employees.

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