Trump’s New Travel Ban: What Employers Need to Know

Trump’s New Travel Ban: What Employers Need to Know

(UPDATE, March 16, 2017: The day before the travel ban was scheduled to go into effect, two federal judges issued injunctions temporarily blocking it. This means the ban is not currently in place but may still become effective in the near future if the administration prevails in court, so employers should remain prepared to comply with it and anticipate contingencies regarding business travel, global recruiting, etc.)

On Monday, US President Donald Trump issued a new version of his controversial executive order from January that temporarily suspended the admission of refugees and migrants from several countries. The revised “travel ban” comes after Trump’s first attempt was blocked in court and is designed to better withstand a court challenge. That order, which revokes and replaces the previous one, puts in place the following policies with an effective date of March 16:

  • The ban now targets countries: Iran, Libya, Somalia, Sudan, Syria, and Yemen. Iraq is no longer on the list.
  • Visa processing will be suspended for 90 days for citizens of the affected countries. Legal permanent residents (Green card holders) and holders of valid visas for entry or advance parole documents will still be allowed to enter the US. The ban applies only to nationals of the affected countries who, according to the order, “are outside the United States on the effective date of this order [March 16]; did not have a valid visa at 5:00 p.m., eastern standard time on January 27, 2017; and do not have a valid visa on the effective date of this order.”
  • Dual citizens who are nationals of the affected countries may still enter the US on a passport from a non-affected country.
  • The order will be implemented over a period of ten days rather than immediately. The sudden impact of the previous order was one factor in the chaos that ensued at international airports around the country immediately after it was issued.
  • The admission of all refugees to the US is suspended for 120 days. Whereas the previous version of the order banned Syrian refugees indefinitely, the new order does not, meaning they are now barred for only 120 days. No religious exemptions are included in the revised ban.
  • The ban is temporary, in order to allow the Trump Administration a period of time to review and revamp existing vetting procedures, but the ban can and will be extended (or made permanent) should the government deem that necessary. It is not yet clear what the revised vetting procedures will entail.
  • Under certain circumstances, those affected by the ban can also apply for a waiver, and those waivers will be approved on a case by case basis should the applicant be able to prove they are not a security risk and that the ban causes them “undue hardship.” Among the waiver scenarios included in the order: when a foreign national seeks entry to the US for significant business or professional obligations; when a foreign national who has been previously admitted for work or study wishes to reenter the country to resume that activity; or when a foreign national seeks entry for urgent medical care or to visit or live with a close family member who is a citizen or permanent resident.
  • The order instructs the State Department to suspend the Visa Interview Waiver Program, which allows frequent travelers to the US to renew visas without undergoing an interview with a consular affairs officer. This instruction, also included in the original order of January 27, applies to all countries, not only those singled out for the entry ban. The suspension will likely create delays for foreign travelers who currently benefit from the program and may lead to a backlog of interviews at US consulates around the world. (N.B.: This is different from the Visa Waiver Program, which allows nationals of 38 countries, including much of Europe, to enter the US without receiving a visa beforehand and is not affected by the order.)
  • The order does not revoke any immigrant or non-immigrant visa issued before its effective date, or refugee status or asylum from anyone who has already been granted it. It also entitles anyone whose visa was revoked as a result of the previous order “to a travel document confirming that the individual is permitted to travel to the United States and seek entry.”

Although the new order is worded to address some of the concerns raised by federal courts regarding the first version, making it more resilient to legal challenges, the American Civil Liberties Union intends to continue fighting the order in court. Other opponents of the original ban may mount legal challenges to this one as well, including Washington state Attorney General Bob Ferguson, GeekWire reports:

In a news conference Monday, Washington state Attorney General Bob Ferguson said his team is reviewing the new travel ban, and he plans to decide whether he will mount a legal challenge later this week.

Ferguson said Trump “capitulated” to his lawsuit challenging the original order by removing key provisions like the ban on green card and visa holders. He said he was happy to see some of these changes, he doesn’t see much change in the motivation behind the order. “The concern that we laid out in our original filing about the intent behind that original executive order, religiously-motivated, targeting Muslim countries, that concern remains.”

Virginia Attorney General Mark Herring and Massachusetts Attorney General Maura Healey are also reviewing the new order and weighing whether to mount new legal challenges, the Associated Press reports.

Meanwhile, business leaders in the tech sector, many of whom objected strenuously to the first ban, are no more impressed with the second. CNN rounds up some reactions from tech sector CEOs:

“Lyft stands firmly against this order,” Logan Green, Lyft’s cofounder and CEO, said in a statement provided to CNNTech. Green said he and his cofounder are meeting with the ACLU on Wednesday to “discuss how we can further support their efforts.” … Uber, Lyft’s chief rival, also spoke up against the measure. “Our sentiment has not changed: President Trump’s immigration ban is unjust and wrong,” a spokesperson said in a statement. “We will continue to stand up for those in the Uber community affected.”

Brian Chesky, Airbnb’s cofounder and CEO, tweeted Monday: “Barring people from entering our country because of where they’re from was wrong the first time around – still wrong…” Shortly after the new order was announced, Salesforce CEO Marc Benioff tweeted about his grandfather who came to the U.S. as a “refugee.” Without him, Benioff wrote, there would be “no Salesforce.”

Many in the tech sector see the Trump administration’s generally negative attitude toward immigration as a threat to its competitiveness in a global talent market; to them, coming on the heels of the administration suspending expedited processing of H-1B skilled worker visas, the renewed travel ban feels like a direct attack, the Washington Post explains, though tech is not the only sector that stands to be affected:

The industries affected by Trump’s broad rhetoric and actions include tech, health care, higher education and agriculture. Idaho dairy producers, for example, depend heavily upon immigrant workers to milk half a million cows each day, [Ali Noorani, executive director of the National Immigration Forum,] said. An increasing number of workers there are refugees. “How is a dairy farmer in Idaho going to operate in this environment?”

At FiveThirtyEight, Anna Maria Barry-Jester takes a closer look at the impact the order might have on health care, highlighting a new study:

There are more than 7,000 physicians working in the U.S. who trained in Iran, Libya, Somalia, Sudan, Syria and Yemen, the six countries in Trump’s new executive order, according to research from a group of doctors and economists at Harvard Medical School using data from Doximity, a professional network for physicians. The Association of American Medical Colleges, which represents all of the accredited medical schools in the U.S. and most teaching hospitals, calculated how many people were affected by the previous executive order covering seven countries, estimating that figure at more than 10,000. The organization says there are also 80 students from those seven countries currently enrolled in U.S. medical schools and about 1,000 people who have applied for residencies and fellowships.

Just like the first one did in January, the new travel ban is also likely to have an impact on business travel and tourism. The restrictions, and the administration’s efforts to restrict entry to the US more generally, are having a “chilling effect” on the number of foreign travelers visiting the US, with New York City alone predicting a massive drop-off in international tourism this year, USA Today reports:

The city projects it will see 300,000 fewer international visitors this year than it did in 2016, a 2.1% dip. It’s the first time that group of travelers has shrunk since 2008, according to NYC & Company, New York’s tourism arm. …

New York’s predicted tourism dip comes amid reports of a drop-off in flight searches and bookings to the U.S. A report released Monday by travel analytics firm ForwardKeys found that international bookings fell 6.5% in the eight days after President Trump’s initial travel ban was announced on Jan. 27. When the courts intervened to stay enforcement of the ban at the start of February, reservations rebounded. They increased 2.2% in the next 12 days as compared to the same period in 2016.

Suspending the Visa Interview Waiver Program will also likely have an impact on business travel, Rob Garver points out at the Fiscal Times:

First of all, eliminating the Visa Interview Waiver Program will make it much more inconvenient for business travelers from many countries to repeatedly enter the United States. Every time a visa expires, they will be required to submit to a sit-down interview with a consular official in their home country in order to get it renewed. … The executive order also contemplates a ramped-up vetting process that will make it more difficult and time consuming for people interested in traveling to the United States as tourists to get here in the first place.

Assuming that the ban survives the likely legal challenges to come, employers of people affected by the ban are being cautioned against sending these employees abroad while it is in effect. SHRM’s Roy Maurer passes along some expert advice:

“Employers will need to carefully consider the international travel of foreign national employees who are nationals of one of the six countries,” said Jeffrey Bell, an immigration attorney and shareholder in the Kansas City, Mo., office of law firm Polsinelli. “Many employers have employees working in lawful immigration status, but with expired travel visas. These individuals will not be in a position to renew their visas when traveling abroad and would be barred from returning to the U.S. Also, newly hired employees from the six countries who are not presently in the U.S. or without a current U.S. travel visa will be delayed in traveling to the U.S. and starting employment.”

Employers should also realize that their Muslim employees may feel singled out or vulnerable on account of the ban, since the six countries targeted by the order all have majority-Muslim populations, and Trump had in fact originally proposed banning all Muslim foreigners from entering the US during his presidential campaign. Many political pundits have thus referred to this and the previous travel ban as a “Muslim ban,” though the White House insists that is not the order’s intent.

One of eight key takeaways from CEB’s recent webinar with a panel of immigration law experts was that policies like those the Trump administration is pursuing can have side effects: Immigrants already living and working here legally, as well as some US citizens, can expect more delays and security checks when traveling or processing paperwork.

Employers concerned how about the ban may affect their workforce, or how they may need to respond, should consult their general counsel for additional guidance.