Appeals Court Denies President Trump’s Request to Reinstate Immigration Ban

By Roy Maurer Feb 10, 2017
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Karen Shore holds up a sign outside of the 9th U.S. Circuit Court of Appeals in San Francisco, Tuesday, Feb. 7, 2017 (AP Photo/Jeff Chiu).

Employers may continue to process immigration and travel for foreign national workers from the seven countries named in President Donald Trump's executive order limiting immigration. A federal appeals court unanimously denied the president's appeal to reinstate the ban.

Citizens from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen are free to enter the U.S. after a 9th U.S. Circuit Court of Appeals panel upheld Feb. 9 a lower federal court judge's nationwide temporary restraining order blocking the president's controversial executive order.

"The president will now appeal to the Supreme Court, as he confirmed via Twitter almost immediately after the court's ruling," said Julie Pearl, CEO and managing attorney of the Pearl Law Group, based in the San Francisco Bay area. "The travel ban will not be reinstated for now unless the Supreme Court orders it so within the coming weeks."

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Visas that had been revoked by the order have been reinstated and visa processing at U.S. consulates around the world will be administered as normal—with travelers undergoing standard screening—as the merits of the executive order continue to be litigated.

"This situation continues to remain highly fluid with near-daily developments, so employers will want to remain up to speed with the case as its outcome could impact your workforce and require adjustments to your business practices," said Kim Thompson, a partner in the Atlanta office of law firm Fisher Phillips and chair of the firm's Global Immigration Practice Group.

Thompson recommended that employers with affected employees outside the United States have those employees return to the U.S. as quickly as possible, however. "The legal status of the court order could change at any time so immediate action is essential."

Employers should consider postponing international work-related travel by employees from the affected countries and canceling any personal travel outside the country for those workers, if possible, she added.

“I continue to urge great caution when planning international travel,” said Avi Morell, a partner in law firm Pryor Cashman’s Immigration Group based in New York City. “First, these issues continue to be litigated and the courts have not yet had an opportunity to conduct a full judicial review of the executive order. So we don’t know if—and how quickly—the rules could change. Second, we still do not know what, if any, indirect consequences of this situation—such as delays at ports and heightened scrutiny—could impact travelers. Employers need predictability in order to make decisions, and predictability is in very short supply in this situation.”

Affected employees with valid visas still in their passports should not be impaired when traveling, but caution is still urged.  "For those employees with visas that were physically revoked [removed from passports], we recommend working with legal counsel to determine whether these employees should apply for a new visa or return to the country and apply for an I-193 visa waiver for prompt admission to the U.S.," Thompson said. "Absent any other admissibility issues, these individuals should receive an I-193 waiver upon arrival to the U.S."


[SHRM members-only toolkit: Obtaining U.S. Employment Visas]

What Happens Next

The appellate court ruling focused on whether the president's order should be paused while the larger issues are weighed. It does not resolve the long-term uncertainty for employers and workers from the affected countries.

"The decision simply upholds the temporary restraining order issued by the federal court judge," Thompson said. "The parties will still litigate the matter at the U.S. District Court in Seattle to determine whether that restraining order should be transformed into a permanent injunction, adjusted in some manner, or scrapped altogether, and a return trip to the 9th Circuit seems possible as well."

The Trump administration has a few options also. “We do not know if they will ask the entire Ninth Circuit, rather than just a three-judge panel, to review this again, seek review at the Supreme Court, or simply proceed with litigating the main case at the District Court level,” Morell said. President Trump could also rescind the order and rewrite it, or drop it.
It seems likely that the Trump administration will seek a final review of this issue before the U.S. Supreme Court," Thompson said. And the high court has demonstrated its ability to move rapidly when necessary, she added.

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