International Employment

Earlier this week, the Supreme Court issued a ruling staying certain parts of the injunctions entered by the Fourth and Ninth Circuit Courts of Appeal against Executive Order No. 13780, the so-called “travel ban” Executive Order (the “Order”), and the State Department issued clarifying guidance last night. The effect of the Supreme Court ruling is to allow implementation of the Order to move forward with respect to foreign nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen (the “Restricted Countries”) who do not have “bona fide relationships” with persons or entities in the United States. (For further background on the Order, see our prior alert.) As we have previously advised, U.S. employers who employ foreign nationals from the Restricted Countries should carefully consider whether international travel for such employees is necessary; if so, such employees should carry extensive documentation reflecting his or her ties with the U.S. employer to establish a “bona fide relationship.”

Background

The injunctions had prevented the Trump Administration from enforcing the provision of the Order that temporarily suspended entry into the United States of certain nationals from the Restricted Countries. The Ninth Circuit’s injunction had also enjoined enforcement of the Order’s provisions temporarily suspending the Refugee Admissions Program and capping the annual number of refugees at 50,000 for fiscal year 2017.

The Supreme Court’s decision partially reinstated those provisions, but only as to foreign nationals without ties to persons or entities in the United States. For foreign nationals who have “bona fide relationships” with persons or entities in the United States, the injunctions remain in effect and the Order cannot be enforced against them. And the Order cannot be enforced against refugees with bona fide ties to the United States, even if this results in numbers exceeding the 50,000-person annual cap on refugees for fiscal year 2017.

Bona Fide Relationships

The State Department issued new guidelines last night to American embassies and consulates providing further clarification on what types of relationships are “bona fide.” According to the guidelines, a “close family” relationship is bona fide, and “close family” is defined as a parent, parent-in-law, spouse, child, adult son or daughter, son-in-law or daughter-in-law, and sibling (whole or half). This category also includes step relationships. The guidelines also provide that “close family” does not include grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-law, sisters-in-law, fiancés, and other extended family members.

Consistent with the Supreme Court’s decision, the guidance also specifies that bona fide relationships with U.S. entities must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading the Order. The guidance notes that hotel reservations do not constitute bona fide relationships with a U.S. entity for purposes of the Order. So, for example, employees of U.S. companies, students accepted to study at American universities, foreign workers who have accepted employment in the United States, and lecturers invited to address American audiences will likely not be barred from entry, even if they are from one of the Restricted Countries, so long as they hold a valid visa or green card. The Supreme Court decision noted that relationships formed specifically for the purpose of evading inclusion in the travel ban do not qualify as “bona fide” relationships, and the guidelines support this exclusion.

Looking Ahead

The Supreme Court’s decision is a ruling on the stay of the injunction only, not a ruling on the merits of the challenges to the Order itself. The Court has also granted certiorari in the underlying appeals and is scheduled to hear oral argument on the merits of the Order during the October 2017 term, after which more changes are possible. It is also possible that parts of the appeal may become moot—for example, because of time limits for enforcement included in the original Order. In addition, the State Department Guidance indicates that consular officers will be responsible for determining whether foreign nationals have bona fide ties with the United States on a case-by-case basis, which could lead to inconsistency in enforcement.

An employer in the U.S. that employs foreign nationals from one of the Restricted Countries should review whether any such employees are scheduled for international work travel. Such foreign nationals should only be sent on international travel assignments if absolutely necessary, and the employee should carry documentation reflecting his or her relationship with the U.S. employer. Employers should also monitor the immigration status of their foreign national employees from the Restricted Countries to ensure that employees do not fall out of status while Supreme Court review of the Order is pending.

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Photo of Lindsay Burke Lindsay Burke

Lindsay Burke co-chairs the firm’s Employment Practice Group and regularly advises U.S., international, and multinational employers on employee management and culture issues and international HR compliance. She is a key member of the firm’s Institutional Culture and Social Responsibility practice, working together with…

Lindsay Burke co-chairs the firm’s Employment Practice Group and regularly advises U.S., international, and multinational employers on employee management and culture issues and international HR compliance. She is a key member of the firm’s Institutional Culture and Social Responsibility practice, working together with white collar colleagues to conduct culture assessments, internal investigations of executive misconduct, and civil rights and racial equity audits and assessments. Lindsay has been at the forefront of the changing workplace issues impacting employers in the U.S. in the last decade, including #MeToo, Covid-19, and the renewed focus on diversity, equity, and inclusion. She frequently advises employers in relation to their processes and procedures for investigating complaints of discrimination, harassment, and retaliation and trains executive teams and board members on culture risk and the lawful implementation of DEI programs.

Lindsay also guides employers through the process of hiring and terminating employees and managing their performance, including the drafting and review of employment agreements, restrictive covenant agreements, separation agreements, performance plans, and key employee policies and handbooks. She provides practical advice against the backdrop of the web of state and federal employment laws, such as Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Equal Pay Act, the Family and Medical Leave Act, the Fair Labor Standards Act, and the False Claims Act, with the objective of minimizing the risk of employee litigation. When litigation looms, Lindsay relies on her experience as an employment litigator to offer employers strategic advice and assistance in responding to demand letters and agency charges.

Lindsay works frequently with the firm’s privacy, employee benefits and executive compensation, corporate, government contracts, and cybersecurity practice groups to ensure that all potential employment issues are addressed in matters handled by these groups. She also regularly provides U.S. employment law training, support, and assistance to start-ups, non-profits, and foreign parent companies opening affiliates in the U.S.

Photo of Dan Johnson Dan Johnson

Dan Johnson has more than 30 years of experience helping government contractors and other clients successfully resolve contract and employment disputes.

Dan has extensive trial experience, resulting in bench verdicts, jury verdicts and arbitration awards in favor of his clients. These include trial…

Dan Johnson has more than 30 years of experience helping government contractors and other clients successfully resolve contract and employment disputes.

Dan has extensive trial experience, resulting in bench verdicts, jury verdicts and arbitration awards in favor of his clients. These include trial victories in multi-million dollar trade secret cases, complex business litigation arising from prime-sub relationships, and other business disputes.

Dan also helps employers resolve a host of matters arising out of the employment relationship. These include employment agreements, covenants not to compete, employee discipline and terminations, and discrimination, whistleblower, retaliation, wage and wrongful termination claims.

Dan is a contributing author to “The Comprehensive Guide to Lost Profits Damages for Experts and Attorneys” published by Business Valuation Resources, LLC.

Photo of Christopher Walter Christopher Walter

Christopher Walter works with employer clients on domestic and international HR-legal compliance, disputes, and transactional projects. Chris is a former co-chair of the firm’s International Employment practice, and previously served for eight years as Managing Partner of the London office.

Chris’s advisory practice encompasses…

Christopher Walter works with employer clients on domestic and international HR-legal compliance, disputes, and transactional projects. Chris is a former co-chair of the firm’s International Employment practice, and previously served for eight years as Managing Partner of the London office.

Chris’s advisory practice encompasses the full range of employment and employee benefits issues that matter to leading multinational employers, including the drafting of share and other incentive plans, global mobility, privacy compliance, employment issues in M&A transactions, outsourcing, workforce integration, and the implementation of core policies/codes of conduct, with a particular focus on business and human rights.

Chris began his legal career as a UK barrister, however, and also has considerable experience as an advocate before UK courts and tribunals, securing confidentiality injunctions and defending employers against claims of unfairness, discrimination and other alleged violations of employment laws.

Chris is recommended by Legal 500 UK for his “exceptional service.” Chambers UK (2015) notes that he is “focused, business-oriented and solution-driven.” Chris has been listed by Who’s Who Legal since 2007 as one of the world’s top employment lawyers.

Chris has served as chair of the International Committee of the Employment Lawyers Association and a member of ELA’s Management Committee. He is also a member of the European Employment Lawyers Association and the Share Plan Lawyers Group.

Chris regularly publishes articles and speaks on employment and data privacy law at both external seminars and in-house client training events.