The Collective Public Policy Voice of the Exchange Community

On Monday, June 26, the Supreme Court granted partial approval for President Trump’s second Executive Order issued in March, which stopped the inflow of refugees for 120 days and blocked travel for 90 days from six countries: Yemen, Sudan, Syria, Iran, Libya, and Somalia. The Court also agreed to hear two cases filed against the travel ban in the first session of the October Term 2017.

In a narrow decision, the Supreme Court granted the administration’s petitions to enforce the travel ban, but only for those “foreign nationals who lack any bona fide relationship with a person or entity in the United States.”

In order to avoid violating the rights of a person or entity already in the United States, the Court will allow travelers with existing connections to enter the U.S. As outlined by the American Immigration Council, the categories for this exception include:

  • Individuals with a valid visa issued on or before June 26, 2017
  • Individuals with visas who are coming to live or visit with family members
  • Students admitted to U.S. colleges or universities
  • Workers with accepted offers of employment with U.S. businesses
  • Lecturers invited to speak in the U.S.
  • Other types of business travelers
  • Refugees with close family connections

In a press release, Dr. Esther D. Brimmer, Executive Director and CEO of NAFSA: Association of International Educators, argues that:

“International educators are relieved to be able to tell our international students and scholars that they should not be afraid to come to our campuses to study, work and exchange ideas. We are pleased the court acknowledged that students and scholars and others with connections to the United States could not be barred from our country simply because of their nationality or religion, at least while the underlying litigation continues.

“Unfortunately, individuals from the affected countries with no ties to the United States will be subject to the ban on the grounds that a lack of connection to the United States somehow provides evidence of a national security threat. If that is the case, then we should be making every effort to create connections and ties through robust international exchange and travel, and we call on the administration to make clear in its guidance that prospective students and scholars should not be afraid to seek admission to the United States regardless of their current ties.”

It is unclear if the Court’s decision is prospective or retrospective only and how it will affect individuals who form bona fide relationships after June 26, 2017. Travelers from one of the designated Muslim-majority countries may be barred from entering the U.S. if the purpose of their trip is not to visit family but other reasons.

Justices Thomas, Alito, and Gorsuch expressed partial dissent with the Court’s majority opinion. They argue that the entire injunction should have been lifted because the unclear phrasing of the compromise will “burden executive officials with the task of deciding – on peril of contempt – whether individuals from the six affected nations who wish to enter the United States have a sufficient connection to a person or entity in this country.”

Given the Supreme Court’s ruling and a memorandum issued by President Trump on June 14, the ban is set to go into effect at 8 pm EST on June 29. However, the 90-day period set forth in the Executive Order would end in late September, before the Court meets. Since the point would be moot, it is possible the Supreme Court would end up not reviewing the case at all in October.