• How Does President Trump’s Immigraton Executive Order Affect Employers?
  • June 26, 2017 | Authors: Gregory B. Reilly; Adam G. Guttell; Melanie M. Ghaw
  • Law Firms: Martin Clearwater & Bell LLP - New York Office; Martin Clearwater & Bell LLP - Newark Office
  • On January 27th, President Donald Trump signed an Executive Order (“EO”) to ban entry and suspend immigration into the United States for foreign nationals from Iran, Iraq, Libya, Sudan, Somalia, Syria, and Yemen (“Designated Countries”). The EO – entitled Protecting the Nation from Foreign Terrorist Entry into the United States – suspends the issuance of visas, and immigration or entry into the U.S. for foreign nationals from the Designated Countries for a period of 90 days, suspends immigration for all refugees for a period of 120 days, and indefinitely suspends immigration for all Syrian refugees.

    Since the signing, at least 13 lawsuits have been filed across the country challenging the EO. Additionally, District Courts in New York, Massachusetts, Virginia, Washington, and California have issued various rulings objecting to the EO. On Tuesday of last week, Judge André Birotte, Jr. of the U.S. District Court for the Central District of California issued a temporary restraining order prohibiting named Defendants – including, the United States of America, U.S. Department of Homeland Security (“DHS”), U.S. Department of State, and President Donald Trump – from enforcing the EO by “removing, detaining, or blocking the entry of . . . any . . . person from [the Designated Countries] with a valid immigrant visa.” Then, this past Friday, United States District Judge James Robart of the Federal District Court in Seattle, Washington granted the application for a temporary restraining order sought by the Attorney General of Washington State. Over the weekend, the Trump Administration appealed to the Ninth Circuit Court of Appeals seeking to block the temporary restraining order, asking that Judge Robart’s ruling be stayed pending appeal. The Ninth Circuit rejected this request. We anticipate more action in the federal courts, as this issue is expected to weave its way to the United State Supreme Court eventually.

    On January 29th, DHS Secretary John Kelly issued a waiver to permit entry into the U.S. for lawful permanent residents (“permanent residents”) and individuals holding green cards. On February 1st, the White House Counsel announced that green card holders would no longer be subject to the EO. On the same day, the DHS Office of Inspector General announced it would review the implementation of the EO in response to “congressional request and whistleblower and hotline complaints” and “will consider other issues that may arise during the course of the review.” A final report of the review will be issued to DHS Secretary John Kelly on an indefinite date. Pending the final report, the DHS stated it would “comply with judicial orders; faithfully enforce our immigration laws, and implement President Trump’s [EO].”

    In light of the rapid development of the EO, employers should consider the following actions:

    • Advise any employees who are U.S. lawful permanent residents (“permanent residents”) or foreign nationals from any Designated Countries to avoid traveling outside the U.S.
    • Advise any employees from the Designated Countries – aside from permanent residents – who are currently outside the U.S. that they should not return to the U.S. at this time.
    • Advise all foreign national employees currently traveling abroad to renew their visas at a U.S. consular post.
    • Consider sponsoring for H-1B visa status under the H-1B Cap Random Selection Process all employees holding a nonimmigrant visa status.

    Please note that the EO does not change how employers should treat job applicants. In other words, even though applicants from the Designated Countries may be prohibited from entering and working in the U.S., employers should not make inquiries about national origin during the job application process.