Employers face uncertainty over ‘less disruptive’ new travel ban, H-1B delay

March 07, 2017 - by: Kate McGovern Tornone 0 COMMENTS

The Trump administration recently implemented two major changes to its immigration policies, and the full effect for employers remains to be seen. Between a replacement Executive Order (EO) on immigration and the suspension of the fast-track process for H-1B (highly skilled) worker visas, employers and foreign employees may soon face new hurdles, albeit fewer than under the original immigration EO.

President Donald Trump signed the new EO on immigration March 6, rolling back parts of his original order. The first EO, issued January 27, barred travelers from seven Muslim-majority countries, arguably including permanent U.S. residents, for 90 days. It also placed a 120-day hold on the U.S. refugee program, prevented even individuals who already had received refugee status from entering the country, and adopted a new religious test for refugees that had the effect of prioritizing non-Muslims.

The original EO took effect immediately, but it was quickly blocked by a federal district court. The U.S. 9th Circuit Court of Appeals upheld the temporary freeze on February 9, and litigation is ongoing.

The new order removes Iraq from the list of restricted countries, leaving just Iran, Libya, Somalia, Sudan, Syria, and Yemen. It exempts individuals with a visa or refugee status from the ban and does not include a religious test for refugees. It takes effect March 16.

Employers, especially those in the tech industry, spoke out against the original EO, saying it had negative consequences for businesses. Microsoft, for example, said the ban would hinder its ability to adequately staff research and development teams.

The order went so far as to revoke visas and halt employer petitions for them, and that was really what shook employers last time, according to Elaine Young, a member of Kirton McConkie and contributor to Utah Employment Law Letter. “It was the suddenness and the impact on existing visa holders,” she said.

Experts are hoping, however, that the changes—coupled with a new mention of “waivers” to the restrictions—mean employers won’t face as many difficulties because of the revised order. “It really is quite a bit pared back,” said Lori Chesser, a senior shareholder at Davis Brown Law Firm. “It’s less disruptive.”

It’s too soon to tell, however, whether the waivers actually will be useful, according to both Chesser and Young. Waivers will be issued on a case-by-case basis at the discretion of consular officers and U.S. Customs and Border Protection.

“There’s a lot that is unclear,” Young said. Anytime you have one person who has discretion, you can’t know what will be required to satisfy the standard for a waiver in that person’s opinion, she said. “We don’t know how they’re going to apply that.”

The new order may not provide any relief for employees outside the country with an expired visa, Young noted. Under the old order, consulates canceled interviews (one part of the visa process) with those employees. The new order doesn’t appear to include an exemption for employees who previously held visas; they might need to seek a waiver, Young said. “That’s an unknown,” she said. “The way it’s written is really confusing.”

Related to the ban are two recent U.S. Department of Homeland Security (DHS) memos in which the department announced ramped-up enforcement of immigration policies. In one, the DHS discussed tightened requirements for the “advance parole” travel document for individuals going through the green card (permanent resident) process. Such individuals who wish to leave the country must have that document to reenter the United States. Without it, they are considered to have abandoned the immigration process.

The memo says the allowance will be granted “only on a case-by-case basis, and only for urgent humanitarian reasons or significant public benefit.” The memo affects employers that have workers who travel and are in the middle of the immigration process, Chesser previously said. The new EO talks about exceptions for individuals who possess the document, “but we do have to keep our eye on the new advance parole directive,” Chesser said. “I’m still worried about people traveling.”

Potential H-1B ‘nightmare’

The new order, however, may not be employers’ biggest immigration concern right now. Young said she’s not seeing the same outcry from employers over the new travel ban as she saw with the first one. Instead, employers are more worried about changes to the H-1B visa program announced March 3.

Just before Trump issued the new EO, U.S. Citizenship and Immigration Services (USCIS) announced a slowdown of its H-1B program. H-1B visas are used by doctors and professors, for example, and the change could have major implications across various industries, Young and Chesser noted.

Using “premium processing,” an employer could get an H-1B visa for an employee in 15 days. That option will be suspended as of April 3, and employers can expect delays of up to six months, Young said. Some businesses may be unable to fulfill contracts, she added. “It’s going to be such a nightmare for companies.”

Employer takeaway

The ability of the new EO to survive a legal challenge may turn on whether a court believes it constitutes a “Muslim ban”—a characterization that seemed to trouble the 9th Circuit when it evaluated the first order, Young said.

A judge might view the new EO as the same old “Muslim ban,” which opponents say violates the U.S. Constitution. On the other hand, with the religious language removed, maybe a court will determine that Trump found a way to keep out terrorists with an order that isn’t a “Muslim ban” on its face, Young said.

But for now, the new EO means that employees from affected countries shouldn’t travel internationally, Chesser said. And with the 10-day warning, there’s a small window of opportunity for employees with an expired visa to seek a new one and avoid finding out what “waiver” and “discretion” mean, Young said. Finally, for employers that wish to use H-1B premium processing, there are about three weeks to file before the program is halted.

On March 10,  join Elaine Young as she presents Trump’s New Immigration Executive Order: What’s Changed and What Lies Ahead for the most up-to-date information on the latest order. Click here to register.

About Kate McGovern Tornone:
Kate Tornone is an editor at BLR. She has almost 10 years’ experience covering a variety of employment law topics. Before coming to BLR, she served as editor of Thompson Information Services’ ADA and FLSA publications, coauthored the Guide to the ADA Amendments Act, and published several special reports. She graduated from The Catholic University of America in Washington, D.C., with a bachelor of arts in media studies. Kate can be reached at ktornone@blr.com.
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