By Laura D. Francis
U.S. companies are scrambling in response to President Donald Trump’s Jan. 27 immigration executive order, which could have a bigger impact on immigrant workers than originally thought.
“Employers are very concerned” about how the order will affect their workers’ ability to come or return to the U.S., New York immigration attorney Cyrus Mehta told Bloomberg BNA Jan. 30. If an employee from one of the seven named countries in the order—other than a green card holder—needed to travel outside the U.S. to complete a deal on his or her employer’s behalf, that would now be impossible, he said. The order also could require companies to rethink their plans for the upcoming petition cycle for H-1B high-skilled temporary visas, he said.
The order blocks the entry of foreign nationals from Iraq, Iran, Syria, Libya, Somalia, Yemen and Sudan for 90 days, although Homeland Security Secretary John Kelly later said green card holders from those countries would be admitted. It also suspends all refugee admissions for 120 days and suspends Syrian refugee admissions indefinitely.
“The situation is very volatile, very fluid, and it seems to be changing every couple of hours,” Houman Afshar of Gibney, Anthony, & Flaherty in New York told Bloomberg BNA Jan. 30. It’s created a “headache” for “corporate America,” he said.
‘Campaign to Limit Legal Immigration.’
“This should definitely be seen as the first step in an orchestrated campaign to limit legal immigration,” American Immigration Lawyers Association President William Stock told Bloomberg BNA Jan. 30. The administration will be using the “drumbeat” of numbers, statistics and framings of the issues to drive home that “immigrants are something that Americans need to fear,” he said.
The initial inclusion of green card holders in the ban “was a feature, not a bug” of the order, said Stock, who practices with Klasko Immigration Law Partners in Philadelphia. The administration’s next step, based on a leaked draft order, will be to review the entire legal immigration with an eye toward prioritizing U.S. workers and rewriting regulations, he said.
Employers need to be prepared for a “sustained threat to all legal immigration programs,” Stock said.
The executive order has “shocked the employment-based immigration system,” Mehta said. “It does affect more people than the way it has been portrayed by the administration,” he said.
Trump tweeted Jan. 30 that only 109 people out of 325,000 were detained and questioned at airports over the weekend. But that only counts those who were traveling at the time the executive order came down, Mehta said.
‘Two Buckets’ of Affected Employees
Affected employees fall into “two buckets”: those who normally work in the U.S. and those who normally work abroad, Andrew Greenfield of Fragomen, Del Rey, Bernsen & Loewy in Washington, D.C., told Bloomberg BNA Jan. 30. Those who work in the U.S. may be unable to travel outside the country, and there are those who happened to be abroad when the order was signed who now are “stuck,” he said.
For those who work outside the U.S., they now won’t be able to come here for meetings, conferences and other business, Greenfield said.
And it’s not just workers from the seven countries named in the executive order. “We’re already seeing, and we’re going to see, more screening at U.S. ports of entry of all kinds of applicants for admission,” Greenfield said. That translates at the very least to more time at the airport, he said.
It’s not that there are a large number of workers in the U.S. from the named countries, Greenfield said. Most companies “just don’t know” their employees’ citizenship, especially if they didn’t sponsor them for visas, he said. And that’s causing companies to send out “unabridged worldwide communications” about the order to cover all their bases, he said.
Effect on Recruitment
“It could affect the recruitment and hiring process,” Greenfield added. Recruiters that perform international searches may need to ask questions about citizenship and nationality in order to ensure that the worker is able to get into the U.S., he said.
Recruiting within the U.S. also could be affected. “There are lots of professionals who come from Iran and work in the United States,” Mehta said. Employers are now faced with the question of whether they should try and sponsor Iranians in the hope the ban is lifted, he said.
But “what happens after 90 days,” the end of the temporary ban on immigrants from the seven countries? Afshar asked.
The order provides that countries must provide information to the U.S. government that it deems necessary to adjudicate immigration benefits. There will probably be countries that either can’t or won’t produce that information, so it’s likely the ban isn’t just for 90 days, Afshar said.
And that provision could lead to “further restrictions” beyond the seven named countries, Greenfield said. Germany, for instance, might decide that it values its citizens’ privacy enough to withhold their information from U.S. intelligence agencies, he said. “Could you imagine” the disruption “if Germans couldn’t travel to the United States?” he asked.
Whether that would happen politically is another matter, he said. But according to the text of the order, “any country in the world could be included on the list if they failed to cooperate with U.S. authorities in this effort to collect data,” Greenfield said.
Impact on Those Within U.S.?
And then there’s the possibility that the order could be used to deny immigration benefits to immigrants from the seven countries who are already in the U.S. There are already reports that naturalization applications from lawful permanent residents originally from those countries are being suspended.
If that’s the case, foreign workers on H-1B visas could be denied extensions, and they or other immigrants may be denied the ability to adjust their status to lawful permanent resident, Mehta said. “I hope it’s not true,” he said.
“I don’t see that as something that could or should be interpreted from the executive order, but it’s anyone’s guess,” Afshar said.
The executive order “has gone back over 100 years when we had Chinese exclusion issues,” he said. “It’s something that I didn’t think I would see in my lifetime,” he said.