Approximately 15 minutes before the close of business on Friday (Eastern time), President Trump signed an executive order (full text here) to bar Syrian refugees from entering the U.S. and suspend all refugee admissions for 120 days. His order also blocks citizens of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen—all Muslim-majority countries—from entering the U.S. for 90 days, regardless of whether they’re refugees or not.
The order sparked protests at airports across the country and spurred business leaders to speak out against the administration.
The pushback shouldn’t surprise anyone. As Angelo Paparelli, a partner in the Business Immigration Practice Group of Seyfarth Shaw LLP, explains: “These orders strike at the core of their operations, and at their commitment to civic engagement, and the rule of law.” Paparelli notes that all of these businesses run on human capital, and that employers’ ability to immediately deploy vital personnel anywhere on the planet, wherever business calls, without regard to place of birth or nationality,” is vital to the creation of new jobs and for the U.S. to continue to lead the world economy.
Data from the National Foundation for American Policy (NFAP), a nonpartisan public policy research organization focusing on immigration and related issues, finds that a little more than half of U.S. businesses valued at $1 billion or more have been started by immigrants. NFAP also found that immigrants make up over 70% of the key members of management or product development teams at these companies.
Paparelli anticipates the added procedural hoops and bureaucratic delays will arise from the executive order. As the New York Times reported, White House Chief of Staff Reince Priebus said that “border agents had “discretionary authority” to subject travelers, including U.S. citizens, to additional scrutiny if they had been to any of the seven countries mentioned in the executive order, but it was not clear what that would look like in practice.”
Paparelli says that the last thing business leaders of U.S. multinational companies want to hear is that their green-card-holding employees cannot board a plane and be swiftly cleared by U.S. Customs & Border Protection. That’s because at this point, they’ve “reassured their nervous workers who have a choice of countries in which to work, who spent millions in lawyers’ fees, government filing fees, advertising for labor-market recruitment tests, and relocation expenses to comply with our complicated immigration laws,” he says.
Paparelli also observes that the executive order instructs federal agencies to study and issue a report on whether to require more in-person interviews at U.S. consular posts and immigration offices in the U.S., while also adding a nebulous requirement that they evaluate the “likelihood of [an employer-sponsored foreign worker] becoming a positively contributing member of society and the applicant’s ability to make contributions to the national interest.” The order does not specify how employers need to prove this.
This executive order did not specifically call out those workers who hold H-1B visas, one of the largest guest worker programs in the U.S. Others include international student work visas, business traveler visas, and visas for international students completing U.S. degrees. However, another memorandum from the White House issued last week suggests that the president may be close to signing another executive order aimed at limiting these skilled guest-worker programs.
Between 2005 and 2014, the U.S. government granted the top 10 IT outsourcing businesses 170,535 new H-1B guest worker visas, according to Ron Hira, associate professor of public policy at Howard University and a research associate with the Economic Policy Institute. These are jobs, Hira argues, that should be filled by U.S. citizens. However, research from the NFAP counters that their data show that for every H-1B position requested, U.S. technology companies increase their employment by five workers.
CEOs and managers should keep communication open with their staff, and Paparelli recommends that employers let workers know that nothing is yet clear about the legality and scope of the orders. “There’s no immediate need to panic or take brash action,” he maintains. But he suggests that evaluating alternative options under the immigration laws or considering fallback options for employment if your company has a foreign office in a country whose immigration laws are more hospitable are good first steps.
Paparelli advises employers to stay on top of the latest developments, directly or through legal counsel. Next, he says, they must develop a new corporate policy or revise existing policy on the sponsorship of foreign workers affected by the executive order. “The policy should also include existing green card holders and other foreign citizens with temporary work visas or work permits who may be hurt by the Trump executive orders,” he says, and communicate it clearly to staff.
It’s possible, he says, that employers of especially valued or long-tenured workers might decide to sponsor them for other immigration benefits or participate (or encourage the employees to participate) in individual or class action litigation to challenge the orders in court. In some cases, though, Paparelli points out, the employer may be required to terminate a worker if the executive order or its interpretation or implementation under the immigration laws requires it.