How does the limited enforcement of the Travel Ban affect foreign workers and U.S. companies?

July 11, 2017

On June 27, 2017, the Supreme Court ordered that the Trump administration may ban “foreign nationals who lack any bona fide relationship with a person or entity in the United State” from Iran, Libya, Syria, Somalia, Sudan and Yemen. The Court will hear the case on the travel ban in October, at which time the court may clarify what it means by “bona fide relationship”. On July 6, 2017, a federal district court judge declined to clarify the Supreme Court’s ruling on the scope of President Trump’s travel ban. The judge told the lawyers representing the state of Hawaii that they must instead request clarification from the Supreme Court.

While foreign workers and U.S. companies wait for the decision in that case, the looming question for many is “What constitutes a bona fide relationship?”. For employment-based applicants, the bona fide relationship must be “formal, documented and formed in the ordinary course rather than for the purpose of evading” the ban. This includes students, workers (specifically, H-1B and L-1 visa holders), lecturers, and journalists with employment offers or contracts. People seeking employment or a degree for the sole purpose of circumventing the ban, however, do not qualify.

In addition, consular officers may grant exemptions to applicants from the six countries if they have “previously established significant contacts with the United States”; “significant business or professional obligations” in the U.S.; if they are traveling for business with a recognized international organization or the U.S. government or if they are a legal resident of Canada who applies for a visa in Canada.

For example, Nadeen is a citizen of Yemen and is working in India for a multinational IT company, SYNTECH, Inc. SYNTECH wants to transfer her from its Indian office to its U.S. office using an L-1A visa. SYNTECH offers her a job as a Middleware Systems Analyst in the U.S. and Nadeen signs the employment contract. Although Nadeen is a citizen of one of the banned countries, she is permitted to enter the U.S. with the proper documentation of her bona fide employment relationship because she has accepted a valid job offer.