Employment-Related Effects of New Executive Orders on Immigration

locked passportMany of our readers are undoubtedly wondering about the impact on the workplace of the new administration’s various immigration-related executive orders of the past week. While much of the subject matter of those orders is beyond the scope of this employment-law blog, there are a handful of points that employers and employees should be aware of and monitor from a workplace perspective.

First, it is important to understand that the 90-day ban on entry into the United States by nationals of seven designated countries (Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen) announced on Friday, January 27, 2017 applies to those with employment-based visas, not just to refugees or family-based applicants, and that the order does not distinguish between those entering the United States for the first time and those who may be returning from travel abroad.  So, for example, the order would bar re-entry by an Iraqi national with a valid H-1B visa who works full-time in the United States and is presently outside of the country for a temporary conference or a customer visit, just as much as it would bar entry for the first time by an Iraqi national on a B-1/B-2 visitor visa.

Second, there has been conflicting, and changing, guidance from the administration on how the entry ban affects (i) those who are permanent residents of the United States (that is, who hold what is colloquially called a “green card”) and are citizens of the seven designated countries, as well as (ii) those who hold dual nationality of one of the designated countries and of another country that is not the subject of the new order.  The most current interpretation from the White House is that people in the first category will be allowed to board flights to the United States, but that on arrival, before being admitted, they will be subject to secondary screening (meaning, at minimum, an additional interview by border officials over national security issues).  There has as yet been no official contradiction of the State Department’s initial interpretation of the order as applying equally to those who hold dual nationality of both a barred country and a non-barred one, although certain foreign governments, such as Australia’s, have said that they have received private assurances from the United States that dual-nationals of their countries will be unaffected.  As there is little formal interpretive guidance on any of these points, people in these categories should be extremely cautious of even business-related travel until there are further developments.

Third, the “visa interview waiver program” has been discontinued – globally, for nationals of all countries.  This program, which is distinct from the similarly-named and more commonly-known “visa waiver program,” had allowed certain applicants for visa renewal to forego ordinarily-required consular interviews in their home countries prior to renewal.  The consequence of this change is not that affected visa applicants will necessarily be prevented from entering the United States, but that they will have to pursue a more complicated and time-consuming process for renewal of expiring visas before doing so.  While the cancelation of the waiver program may affect some H-1B and L-1 visa holders who leave the United States at or after applying for extension of their visas, those likely to be most affected in commercial contexts are people who come to the United States often in B-1 status for short visits on behalf of their employers or businesses in other countries, as opposed to take work in the United States, and who also are not nationals of the countries involved in the better-known visa waiver program (the program that waives B-1/B-2 visa requirements altogether for most nationals of highly-developed, U.S.-allied countries, typically in Western Europe, East Asia, and Australasia).  These would include, for example, salespeople or account managers who visit the United States regularly to call on customers and prospects, non-U.S. personnel assigned to regularly visit a U.S. factory or meet with U.S.-based counterparts.  Many people in these situations have multi-entry B-1/B-2 visitor visas that will be longer be renewable without a consular interview.

Fourth, while there has been discussion in the press of allegedly leaked executive orders that would rescind Obama-era policies allowing extensions of “OPT” work authorization periods for university graduates in STEM fields, and allowing for work permission for the spouses of certain H-1B visa holders who are waiting for permanent-resident visas to become available to them, such changes have not yet been put into effect, nor has the White House confirmed that they are under consideration.

This is a very fluid regulatory atmosphere. There has already been litigation over some of the above policies, resulting in temporary injunctions in several courts that will affect implementation in ways that are still emerging.  The entry-ban order includes a provision for possible expansion to nationals of countries beyond the seven first designated.  And there has also been considerable opposition to some aspects of the orders from both parties in Congress.  We will continue to monitor these orders and other new employment-related immigration developments and post about them here.