On March 29, 2017, U.S. District Court Judge Derrick Watson granted a request by the State of Hawaii for a preliminary injunction blocking implementation of key portions of President Donald Trump’s immigration travel ban until the matter is fully decided on the merits. A temporary restraining order (TRO), which had been previously issued by the Hawaii court on March 15, 2017, halted implementation of core portions of President Trump’s revised executive order (EO), titled “Protecting The Nation From Foreign Terrorist Entry Into The United States,” banning entry into the United States by nationals of six designated countries: Iran, Libya, Somalia, Sudan, Syria, and Yemen. By converting the TRO into a preliminary injunction, the Hawaii court effectively locks the status quo in place until and unless either: 1) the U.S. Department of Justice successfully appeals the ruling, or 2) the case is decided on its merits—a process that could easily take longer than the 90-day and 120-day entry bans on foreign nationals and refugees respectively from the underlying executive order.
Specifically, the preliminary injunction now blocks sections 2 (which temporarily suspended entry into the United States for nationals of six designated countries) and 6 (which suspended travel of refugees into the United States for 120 days) of the EO from going into effect on a nationwide basis. Other provisions from the EO, such as the suspension of the Visa Interview Waiver Program addressed in Section 9, were covered neither by the preliminary injunction nor the preceding TRO. Barring any injunction from any other court challenge, those other provisions remain in effect as of March 16, 2017.
The injunction is positive news for foreign national employees who are from Iran, Libya, Somalia, Sudan, Syria, and Yemen and who might otherwise have been subject to the provisions of the EO. Despite the preliminary injunction, employers and their foreign national employees should bear in mind that the case challenging the EO is still pending. Thus, should the injunction be successfully appealed, foreign nationals from one of the designated countries who are covered under the EO’s provisions would risk being refused admission back into the United States upon return from any international travel.
Which Groups Fall Safely Outside the Scope of the EO and the Case?
Regardless of the preliminary injunction, many foreign nationals, even some from the countries designated in the EO, will remain eligible to request admission to the United States. Those foreign nationals who fall outside the scope of the now-halted EO include:
- foreign nationals from one of the six designated countries who hold a currently valid visa;
- foreign nationals from one of the six designated countries who held a valid visa on January 27, 2017 (the order instructs that foreign nationals whose visa was revoked or marked canceled based on the prior version of this executive order are entitled to request a travel document that confirms they are permitted to travel to the United States and request admission);
- lawful permanent residents;
- foreign nationals who are admitted or paroled into the United States on the effective date of this order;
- foreign nationals who hold a document other than a visa that is valid on the effective date of the EO or is issued after the EO that permits travel and the ability to request admission to the United States, including advance parole documents;
- a dual national of a designated and non-designated country traveling on a passport from a non-designated country;
- foreign nationals from the six designated countries who apply for diplomatic or diplomatic-type visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, or G-1, G-2, G-3, or G-4 visas; and
- any foreign national granted asylum; any refugee already admitted to the United States; and individuals granted withholding of removal, advance parole, or protection under the Convention Against Torture.
Ogletree Deakins’ Immigration Practice Group will continue to monitor developments with respect to President Trump’s executive orders regarding immigration and post updates to the firm’s Immigration blog as additional guidance becomes available.