Trump’s Executive Order, immigration, and the how it affects employers

On Friday, January 27, 2017, US President Donald Trump issued an Executive Order (EO) titled "Protecting the Nation from Foreign Terrorist Entry into the United States."

The Executive Order does the following:

• Suspends entry of all refugees to the United States for 120 days.
• Bars Syrian refugees indefinitely.
• Blocks entry into the US for 90 days (until 4/27/17) for individuals from Iraq, Iran, Syria, Sudan, Libya, Somalia, and Yemen. The ban applies to individuals with both visitor visas (B-1/B-2) and work visas (H-1B, L-1, O-1).

Naturalized U.S. citizens from the seven designated countries, as well as permanent residents with Green Cards will not be banned from entering the U.S.  Individuals who are not citizens of the designated countries but are residents of, or have strong ties to any of the countries, will be banned from entering the US.  This includes citizens of the designated countries who hold dual-citizenship with another country.

US Citizenship and Immigration Services (USCIS) has also been ordered to suspend processing of all immigration benefit applications filed by or on behalf of nationals of the seven countries.

Wide-ranging implications for Employers

This order has wide-ranging implications for employers who employ Visa or Green Card holders from one of the designated countries.  While a small number of Visas are exempt from the executive order (including diplomatic Visas, North Atlantic Treaty Org. Visas, C-2 Visas, and G-1, G-2, G-3, G-4 Visas), most Visas, including the common H1-B, L-1, and F-1 Visas, are covered by the order.

Employees from one of the designated countries who hold Visas covered included in the order will likely have difficulty entering/re-entering the U.S. while the order is in effect. Though not technically included in the order, Green Card holders may be subject to heightened scrutiny when re-entering the country.

Suggested Employer actions:

• Cancel international travel for at least 90 days by employees or individuals doing business with your company who will be subject to the travel ban
• Identify pending requests for immigration benefits on behalf of individuals from one of the designated countries in order to assess the implications of the apparent suspension in the processing of those petitions or applications
• Prepare for potential disruption with service providers whose employees may be impacted by the EO

Remember your legal obligations

Be aware that federal employment laws still prohibit discrimination based on national origin, religion, and citizenship status. Be careful about taking action based on the President’s executive order that may be perceived as averse to current employees located in the U.S.  Employers should not ask for additional documentation from employees who may be affected by the President’s order (unless it’s regarding a Visa status close to expiring), as doing so may be cited as evidence of citizenship discrimination.

Be sensitive to possible claims of harassment or discrimination in the workplace that might arise from heightened tensions between employees or as a result of affected employees feeling targeted or singled out.

Expect Further Developments

President Trump’s order provides for additional countries to be added to the list of those with prohibited entry and provides that a Presidential proclamation will be issued in the near future prohibiting the entry of foreign nationals from a list of specified countries.

At the same time, further legal challenges to the order are anticipated and additional guidance and clarifications are expected. In addition, a draft Executive Order is under consideration that would subject the H1-B program and other immigration policies and procedures to further review.

BCN Services will stay abreast of additional information about this Executive Order and others to come and will help your business interpret any federal rules, policies and legislation. Contact us if we can answer questions or offer additional guidance.