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Navigating New Rules to Entry into the United States

HR Column
On January 27, US President Donald Trump signed an executive order titled “Protecting the Nation from Foreign Terrorist Entry into the United States.” The executive order stated that since September 11, 2001, “[n]umerous foreign-born individuals have been convicted or implicated in terrorism-related crimes…including foreign nationals who entered the United States after receiving visitor, student, or employment visas, or who entered through the United States refugee resettlement program.”

Individuals targeted for exclusion

The executive order states that post-September 11 amendments to the visa-issuance process did not stop these terrorism-related attacks. Thus, among other measures and with some exceptions, the executive order suspended certain immigrants and nonimmigrants from entering into the United States for 90 days. It also suspended all refugee admission for 120 days.

It has been widely publicized that the executive order banned travel into the United States for citizens from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. It is also notable that the order banned individuals “who engage in acts of bigotry or hatred (including "honor" killings, other forms of violence against women, or the persecution of those who practice religions different from their own) or those who would oppress Americans of any race, gender, or sexual orientation.”

The outcome of litigation

In response to a challenge on grounds of unconstitutionality, a US federal judge in Washington State issued a Temporary Restraining Order (TRO) suspending the executive order nationwide on February 3.

Two days later, 127 US companies filed an amicus brief with the Ninth Circuit Court of Appeals in San Francisco opposing the travel ban based on the undue breadth of the restrictions, and damage to their businesses. On the same day, the Ninth Circuit denied a request by the Trump administration to overturn the TRO and immediately reinstate the order.

On February 9, a three-judge panel in the same court unanimously ruled against reinstating the ban. Other parties initiated litigation or filed amicus briefs in other states, including more than 16 research universities in a pending federal case in New York.

A preliminary injunction hearing is expected in the Washington state federal district court. It is also possible the Trump administration may appeal the case to the US Supreme Court.

What this means for employers today

According to the US Department of Labor Bureau of Labor Statistics, there were 26.3 million foreign-born persons in the US labor force in 2015, which amounted to 16.7 percent of the total labor force. Most of these workers were between the ages of 25 – 54 years old. Almost half of these workers were Hispanic, almost one-quarter were Asian, approximately 16.8 percent were White, and 9.2 percent were Black.

While these statistics might suggest that most employers have little to worry about, the outcome of the litigation over the travel ban will have a far-reaching impact on multinational employers. Google CEO Sundar Pichai estimates that the executive order impacted at least 187 employees, while companies such as Apple, Microsoft, Netflix, and Tesla Motors worry that the travel ban might negatively impact employees and families of employees legally working in the United States. They fear it could also hinder their ability to compete effectively for talent.

Presently, however, the Ninth Circuit Court’s opinion means — at least in theory — that foreign nationals can enter and exit the United States as freely as they did before the travel ban, and employers can continue to allow their employees to travel as before.

Practice tips

Employers should closely monitor developments regarding this particular executive order, and watch for additional executive orders that may impact employment.

Despite the current TRO against the travel ban, employers and foreign national employees from the seven identified countries may be subjected to additional scrutiny at US borders when attempting to enter or exit the country. Thus, employers should consider preparing these travelers for potential delays and ensure that all employees have clear documentation setting forth the basis of their permission to enter the United States.

Employers should expect slowdowns in the approval of foreign nationals under visa programs, such as the EB-5 or better known H-1B program. The EB-5 program offers foreign nationals citizenship in return for a minimum investment of US$500,000 in a business or development that creates at least 10 jobs.

Employers who hire students or seasonal workers from the seven countries identified in the executive order should also prepare for a lengthier approval process, and consider whether hiring US workers is a viable alternative in the event visa applications are denied.

Beyond the seven countries specified in the executive order, employers may encounter greater difficulties obtaining approvals for the admission of foreign nationals in general, with heightened scrutiny at US borders. If possible, employers may want to encourage potentially impacted employees to limit travel outside the US, and have plans in place to replace workers that might be subject to deportation.

President Trump has referenced “extreme vetting” as a means to determine who can enter the country. Employers should be prepared for additional scrutiny in addition to the historic random site visits from the US Department of Homeland Security and audits by the US Department of Labor.


Update: On March 6, President Trump implemented a new executive order that excludes Iraq from the list of countries in the original travel ban.

Sidebar References

Executive Order
Visa waiver program for certain visitors
Amicus Brief filed by 127 companies opposing the travel ban
US statistics on foreign-born workers

About the Author

Spiwe PierceSpiwe Pierce is general counsel of ChristLight Productions Ltd., LLC, Lifetime Fellow of the American Bar Foundation, and 2016 Diversity MBA Top 100 under 50 Diverse Executive Leaders. She is a member of the ACC employment and labor, law department management, intellectual property, and litigation sections.

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