How to Navigate Trump's Revised Immigration Ban

By Roy Maurer Mar 15, 2017
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​Two days before President Donald Trump's revised travel ban goes into effect, immigration experts urged HR professionals to stay informed of the constantly changing legal developments around the ban. 

Three federal courts are slated to hear arguments today against Trump's revised executive order temporarily banning immigration and travel from six countries for 90 days. The rulings could alter when or if the ban takes effect.

The ban covers Iran, Libya, Somalia, Sudan, Syria and Yemen—but be on the lookout, the experts warned, for that list of countries to grow. The ban is slated to go into effect tomorrow and will impact:

  • Foreign national workers and their families from the six countries.
  • Employers of those foreign national workers.
  • Potential new hires from the six countries.
  • Business clients from the six countries.

"This is a very uncertain and unpredictable time for employers," said Lynn Shotwell, executive director of the Council for Global Immigration (CFGI), an affiliate of the Society for Human Resource Management (SHRM).

Speaking March 14 at the SHRM Employment Law & Legislative Conference in Washington, D.C., Shotwell said that HR professionals will have to stay informed on the issue and communicate up to senior management about what is happening, ask for more resources to spend on immigration compliance and calm anxious employees, "probably through next year."

Donald Trump
Donald Trump Administration

For more information about Donald Trump's workplace policies and how they affect HR professionals, check out the SHRM resources provided below:

· SHRM's post-election coverage
· Trump's work policies · First 100 days

"We're in a very fluid environment," said CFGI Director of Government Affairs Rebecca Peters. She advised HR professionals to routinely check the Department of Homeland Security website, the consular websites of affected countries, and resources from CFGI and SHRM.

"Ensure that you're looking at your impacted workforce, and make sure they understand the risks of travel right now," she said. "It's really been a learning situation for everyone involved. [After the first executive order was issued Jan. 27] we immediately started getting calls from our member companies trying to understand who was impacted from their workforce and how to message what was happening to staff and leadership."

Be prepared, Shotwell said. Develop a policy to designate what the company will do if an employee abroad gets stuck in consular processing.

A further concern lies in a less-reported-on section of the president's order. More countries may be added to the list of nations whose citizens are banned from immigration and travel to the United States, based on a review of the availability and reliability of information that can be gleaned from screening procedures.

"There's a constant theme here," Peters said. "You cannot count on anything to stay the same in this travel ban situation. There's a lot to keep up on."

Back in Court

A federal judge in Seattle issued a nationwide hold on President Trump's first executive order on Feb. 3, and that ruling was upheld by the 9th U.S. Circuit Court of Appeals on Feb. 6, primarily because the first ban prohibited foreign nationals with legal permanent residence in the U.S. and others with valid visas from entering the country. Attorneys also expressed concern about religious discrimination, as the targeted countries are all Muslim-majority and the original order gave immigration preference to Christians, a religious minority.

"The first travel ban ran into opposition, and the court finally held that it couldn't be enforced because it was unconstitutional," said Austin T. Fragomen Jr., chairman of the executive committee of law firm Fragomen, Del Rey, Bernsen & Loewy. "The second ban was designed to address the issues that the court raised and come up with something constitutional."

Despite the White House's assertion that the revised order is tailored to bear legal scrutiny, critics have again filed lawsuits to block it from taking effect.

The largest lawsuit was filed by Washington state March 9 and joined by several other states since. Washington is asking U.S. District Judge James Robart, the judge who blocked the first ban, to apply the restraining order that temporarily halted the initial ban to the revised ban.

"I think there is a fairly good chance the judge will reinstate the restraining order," Fragomen said.

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