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President Donald Trump’s new travel ban doesn’t appear to affect businesses much differently than the first one, but employers won’t know for sure until they see it in practice.
The terms of the March 6 executive order state that foreign nationals from the six countries named in the ban—Iran, Libya, Somalia, Sudan, Syria and Yemen—who already have valid visas or green cards won’t be affected. But there’s still a chance they’ll face additional scrutiny if they travel, attorney Jeffrey Bell of Polsinelli, a law firm in Kansas City, Mo., told Bloomberg BNA.
The “hope” is that the new order will make it easier for foreign nationals to travel because of additional clarity as to who’s covered and who isn’t, Bell said. But “I still think that businesses are going to take the wait-and-see approach to see how it’s implemented” before deciding on travel policies for their employees, he said.
The new executive order, which goes into effect March 16, replaces one issued Jan. 27. The earlier order applied more broadly, banning the admission of foreign nationals from Iraq as well as the six countries covered by the March 6 order. It also directed the revocation of visas that had been issued to individuals from those seven countries and covered people from those countries with green cards—until that provision was waived by Homeland Security Secretary John Kelly.
It was subject to numerous lawsuits and was blocked nationwide by a federal judge in Washington state.
Under the March 6 order, anyone who already holds a valid visa or has a green card won’t be denied entry to the U.S. Nationals of the six countries who already are in the U.S. also won’t be affected, unless they leave the U.S. and need a new visa to come back.
The new order is “more tightly drafted,” but it’s “still questionable” whether it will hold up in court, Susan Cohen of Mintz, Levin, Cohn, Ferris, Glovsky & Popeo in Boston told Bloomberg BNA March 6. All of the countries on the list are still majority-Muslim countries, so the order continues to support the argument that it is a “Muslim ban,” she said.
The order makes it “a little easier” for people and businesses to deal with travel to and from the U.S., said Cohen, who chairs her firm’s immigration practice. But some of that depends on whether the foreign national has a single-entry visa or a multiple-entry visa, she said. Those with a valid single-entry visa can come to the U.S., but if they leave and want to return after March 16, that could be a problem, she said.
The order suspends entry for individuals from the six named countries for 90 days—but it could last longer than that, Bell said. That’s because the lifting of the ban is contingent on the countries implementing sufficient security measures and information sharing such that the U.S. government believes it can adequately vet visa applicants. For some countries, that could be a tall order, he said.
Most of those countries are still “broken states” that won’t be able to provide the requisite information, Jorge Lopez of Littler Mendelson in Miami told Bloomberg BNA March 6. “I just don’t see the practicality of this being done in the 90-day time period,” he said.
It likely will be “less chaotic” at the airports now than after the Jan. 27 ban, in part because of the delayed effective date, said Lopez, who chairs the firm’s global mobility and immigration practice. But there still could be “logistical concerns” if Customs and Border Protection agents aren’t properly trained and they have to make “interpretations on the spot” of the new order’s provisions, he said.
“Any time there’s a rule change that affects processing,” there will be “a little bit of rockiness” in the initial interpretation, Lopez said.
But businesses want clarity when it comes to properly handling their workforces, he said. “One of the biggest problems” Lopez said he hears is “we don’t know what the rules are and the rules tend to change day to day.” Companies aren’t sure if they should just “park someone in Cleveland” and tell him or her not to leave the country for the visa’s duration, he said.
There’s also a potential “byproduct” of somebody being stuck outside the U.S. because of the travel ban: an employment relationship developing with the country the employee is working in, Lopez said.
If an employee can’t come or return to the U.S. as a result of the executive order, the business could consider having that employee work remotely, he said. However, depending on how long it takes for the employee’s visa to be approved—if at all—that could subject the business to the employment laws of the country where the employee is working, Lopez said.
In that regard, businesses are still “trying to determine what the right plans are for travel for those employees” affected by the new order, Bell said. And if remote work isn’t possible, they may have to terminate the employment of some workers, he said.
It’s not just the executive order that could put a crimp in businesses’ operations. Trump also issued a memorandum March 6 that directs the administration to develop “heightened” screening and vetting procedures for all visa applicants from all over the world—what the president referred to as “extreme vetting” during the campaign.
That’s going to “further delay the already sometimes lengthy visa application process,” Cohen said. The “existing process is quite rigorous, despite what the president has said,” she added. It already could take as many as six to eight weeks—or longer—to get a visa after applying, she said.
And the memo doesn’t just apply to visas. It also applies to “immigration benefits"—immigration applications filed from within the U.S., Cohen said. That means there could be “extremely lengthy waiting periods for things to get adjudicated,” she said. And processing times for visas like H-1Bs—reserved for skilled workers in “specialty occupations"—are taking “an inordinate amount of time as it is,” she said.
Combining the travel ban with additional processing times “without a doubt” will lead to the “wheels of the system slowing down,” Lopez said. And businesses will have to decide how to manage a workforce when there are “slower processing times across the board,” he said.
How much longer things will take depends on what those enhanced screening procedures look like, Bell said. Trump’s separate order directing a federal hiring freeze also could play a role, he said. “Will additional resources be made available to conduct additional vetting?” Bell asked.
So far all of the Trump administration’s actions on immigration have related to enforcement, Cohen said. “They don’t seem to be saying anything at all about a desire to improve the benefits issuing side of immigration,” she said.
That’s been a “frustration to the business community,” Cohen said. Businesses are “doing everything the right way,” but their concerns have been “swept aside” because of “hysteria” over terrorism and national security, she said.
To contact the reporter on this story: Laura D. Francis in Washington at firstname.lastname@example.org
Text of the executive order is available at https://www.whitehouse.gov/the-press-office/2017/03/06/presidential-executive-order-protecting-nation-foreign-terrorist-entry, and the memorandum at https://www.whitehouse.gov/the-press-office/2017/03/06/presidential-memorandum-implementing-immediate-heightened-screening-and.
Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.
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