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How Should Employers Respond to Trump’s Immigration Executive Order?

Any seasoned human resources manager who works for a company that employs some foreign workers already knows that American immigration law is complex and unpredictable. An employer can file two seemingly identical L-1 applications with the same USCIS service center and only get one approved, suggesting that an application’s success can depend on the adjudicator to whom a file was assigned. And we all know how unpredictable the H-1B application process can be: it truly is a lottery. Further, even when an employer application has been approved and the employee has successfully obtained a visa at a U.S. consulate in his home country, the Customs Border Patrol (CBP) agent may still exercise his “discretion” to refuse admission to the employee when she arrives at a U.S. airport.

President Trump’s Executive Order on Friday afternoon, which temporarily suspended all immigration for citizens from seven countries for 90 days, created even more uncertainty for employers with foreign citizen employees, especially since the order initially included employees with permanent U.S. residency “green cards.” Until now, most employers have not had to worry about employees with “green cards” unless they want to temporarily assign those employees to a foreign post outside of the United States. But as of Saturday, an Iranian doctor who worked for a major university or a Syrian geologist who worked for a petrochemical company would have been denied entry to the United States even if they were returning from a short vacation in Cancun or a business trip in Europe and had been longtime, permanent residents of this country.

While the administration subsequently backtracked on the applicability of the Order to green card holders, employees with employer-sponsored non-immigrant visas (e.g., H-1Bs, L-1s, Optional Practical Training F-visas) are still being denied entry if they are nationals of one of the seven countries identified in the Order. So what should employers do in response to this Executive Order? The most immediate takeaway is that employees who are citizens of any of the seven designated countries should try to defer any international travel until there is greater clarity on the government’s position. If an employer has employees who are currently stranded outside of the United States, those employees should first consult with a U.S. immigration lawyer before trying to return to the United States. Finally, while the current Executive Order is limited to employees from seven countries, given the pronouncements of the new administration, employers may want to encourage their foreign national employees to obtain legal advice before traveling outside of the United States. Such advice could include identifying what kind of additional documentation (showing where they work, live, etc.) those employees might want to have with them in order to facilitate their return to the United States. Employees should also be cognizant on what they should say – or not say – if CBP challenges his/her right to re-enter the country. Finally, employees need to understand what rights, if any, they have when they return to the United States. While some hope that Congress will ultimately limit the current administration’s initiatives with respect to foreign-born workers, many of us expect uncertainty to prevail for some time.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.