Cases, appeals, and new versions of the Trump administration’s so-called travel ban continue to dominate the news. We turned to two experts in The LexBlog Network to break down the third version of the travel ban and what it means for employers and employees alike. Greenberg Traurig, LLP’s Ian R. Macdonald, shareholder and Co-Chair of the firm’s Labor & Employment Practice’s International Employment, Immigration & Workforce Strategies group, and Kristen W. Ng, an associate focused on business immigration and compliance matters, including legislative issues, tell us what’s next. Their analysis of future developments can be found via their blog, Inside Business Immigration.
Last week, the Supreme Court allowed the third version of the Trump administration’s travel ban to go into effect while legal challenges against it continue. What does that mean for individuals impacted by this ban?
To understand the effects fully, we should go back to how the Proclamation, as issued, affected foreign nationals of certain countries. This included Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen, and Somalia. The explanations are below.
Chad: Nationals of Chad are restricted entry. This includes immigrants and those on B-1/B-2 visas (tourist/business).
Iran: All entry of Iranian nationals as immigrants and nonimmigrants is suspended, except those in F, M, and J status, though those individuals should expect more scrutiny.
Libya: Nationals of Libya are restricted entry. This includes immigrants and those on B-1/B-2 visas (tourist/business).
North Korea: All entry of North Koreans is suspended, including all immigrant and nonimmigrant categories.
Syria: All entry of Syrians is suspended, including all immigrant and nonimmigrant categories.
Venezuela: The restrictions on entry only apply to government officials of Venezuela who are responsible for the identified inadequacies. This includes various identified government officials and their immediate family members and applies to any B visas. Nationals of Venezuela who are visa holders will be subject to additional security and screening measures.
Yemen: Nationals of Yemen are restricted entry. This includes immigrants and those on B-1/ B-2 visas (tourist/business).
Somalia: Though Somalia was not originally included in the list of restricted nations, it was determined that entry will be limited until there are additional screening and vetting measures. Somalia is a country that has cooperated with identity management and information sharing but has been unable to adequately combat terrorism, according to the report submitted to the president. As such, entry of immigrants is suspended, while other visa adjudications will be subject to additional screening and scrutiny.
The Proclamation will apply to foreign nationals of the identified countries who:
1. Are outside the United States on the effective date (see below);
2. Do not have a valid visa on the effective date; and
3. Do not qualify for a visa or other valid travel document
Suspension of entry will not apply to those who are:
1. Lawful permanent residents of the United States;
2. A foreign national who is admitted to or paroled into the United States on or after the effective date;
3. A foreign national who has a document (that is not a visa) such as a transportation letter or advance parole document, valid on the effective date or issued thereafter, that permits travel to the United States;
4. Any dual national traveling on a passport issued by a non-designated country;
5. A foreign national traveling on a diplomatic visa;
6. A foreign national granted asylum by the United States, a refugee admitted to the United States, or an individual granted withholding of removal, advance parole, or protection under the Convention Against Torture.
The Supreme Court allowed the Travel Ban to be implemented fully, and all the tenets of the Proclamation will go into effect as it was originally written.
How does this travel ban affect employers with current employees and travel ability?
It affects employers to the extent that employees who do not fall under the exceptions will need to apply for a waiver. For an employee, the waiver’s basis can be the relationship the employee has with the employer, including having previously been admitted for work in the United States; having established significant contacts in the U.S., or needs to enter the U.S. for significant business or professional obligation. Please do keep in mind that if the employee did have a valid visa as of the effective date, the ban does not apply to them. Employers and employees should be aware, however, that employees who are dual nationals using another passport, or who are applying for a waiver, may be subject to administrative processing (which will cause more delays), or even receive a visa with a validity that is drastically shortened. Due to these unpredictable circumstances, it is likely the employee will see delays.
How does this travel ban affect employers overall with their foreign worker population?
Employers will naturally want to protect their employees and warn those with passports from one of the designated countries to be wary of travel; however, it is very important that employers be very careful with inadvertently discriminating against employees. For example, when identifying employees who have passports from one of the designated countries, employers cannot use the employees’ Form I-9, as it is only used for verification purposes and not identification. If an employer wishes to send an email to employees, they should be very careful with language and should consult with counsel on the best way to communicate the message to their foreign worker population. In addition, on a personal level, Human Resources and Legal Departments alike should be prepared for challenging employee situations where loved ones are separated or are not able to enter the U.S.
What steps should both employers and employees affected by the ban take in light of this announcement?
Employers will need to closely evaluate their employees’ risks of traveling, and if the travel is necessary, prepare the employee for both applying for a new visa (if applicable) and entry into the United States. If possible, the employer may want to consider curtailing international travel if the employee has no other option but to apply for a waiver (i.e. the employee is not a dual citizen of another country). Adjudication with the U.S. consulates and embassies vary and are inconsistent, and while the guidance given by the Department of State is comprehensive, officers are given wide latitude and discretion in deciding what case warrants waiver. As such, the employer may evaluate and decide that the employee can remain in the United States and conduct meetings via video conference, or find other alternatives to international travel, so as not to risk the chance of the employee not being able to return to the U.S.
What’s next for the travel ban?
The most recent activity on the travel ban is an order by the Supreme Court on December 4, 2017, reinstating implementation of all tenets of the Travel Ban. This means that the lower courts will begin to hear appeals. We should watch the lower courts for their decisions as it will determine the future of the Travel Ban.