The Supreme Court today partially lifted the lower Court’s injunction of the Trump Muslim travel ban for people from Iran, Syria, Libya, Somalia, Sudan, and Yemen.

The Court will allow the government to ban people from the 6 countries for 90 days unless they have a bona fide relationship with a person or an “entity” in the U.S. The Court defines  “bona fide relationship” by giving a few examples, which include foreign students’ attending a U.S. university, people coming to see relatives, and those entering for employment. It said nothing about temporary E-2 investors or permanent resident EB-5 investors.

Here is what the Court says:

“The injunctions remain in place only with respect to …. foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States. ….

The facts of these cases illustrate the sort of relationship that qualifies. For individuals, a close familial relationship is required. A foreign national who wishes to enter the United States to live with or visit a family member, like Doe’s wife or Dr. Elshikh’s mother-in-law, clearly has such a relationship. As for entities, the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading EO–2 (Executive Order #2). The students from the designated countries who have been admitted to the University of Hawaii have such a relationship with an American entity. So too would a worker who accepted an offer of employment from an American company or a lecturer invited to address an American audience.” (Underlining added)

I believe that an EB-5 investor has a bona fide relationship with an “entity” in the U.S., a $500,000 relationship with the EB-5 business in which they have invested. They will also, at a minimum, be a limited partner and advise on the LP’s business matters. We will see what position DHS and the Department of State (DOS) will take on whether EB-5 investors (and temporary E-2 investors) have a connection with a U.S. entity, and thus, whether the revised travel ban applies to these investors.

Extreme Vetting

On a similar note, the DOS has implemented some “extreme” vetting procedures, which involve completing a Form DS-5535, Supplemental Questions for Visa Applicants. Form DS-5535 asks for 15 years of employment, home addresses, social media handles, etc. Such “vetting” will cause delays with visa issuance. It is unclear if  Form DS-5535 will apply to EB-5 immigrants or only non-immigrants, such as tourists and foreign students. One report suggested there will be about 65,000 people subject to extreme vetting.