President Donald Trump’s executive order affecting foreign nationals and refugees from seven Muslim-majority countries sparked an uproar from a number of major employers—particularly those in the tech sector—but it may be just the first signal of a new and uncertain atmosphere for companies wishing to employ foreign workers.
Trump’s order, issued on January 27, prohibits people from seven Muslim-majority countries from entering the United States for at least 90 days. Besides triggering confusion at U.S. airports where affected travelers had already landed, the order sparked protests, court actions, and even the firing of the acting attorney general, Sally Yates. Trump dismissed her after she instructed Justice Department attorneys not to defend the executive order because of her concerns about its legality.
The order affects people from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. Initially, there was confusion on whether the order affected people from those countries who already have legal permanent resident status in the United States, so-called green card holders.
On February 2, CNN reported that airlines were briefed the day before on changes to the order that now allow legal permanent residents from the seven countries to once again come into the country through the Global Entry program, which is available to travelers who have been deemed low-risk. CNN also reported that secondary screenings for green card holders from the seven countries would end. In order to qualify for green cards, permanent residents already go through background screenings.
The tumult the executive order unleashed sparks questions about what Trump may do next related to a variety of foreign workers, including workers holding H-1B visas, which are granted to foreign workers in specialty occupations requiring a college degree or the equivalent who earn at least the actual or prevailing wage for the occupation.
“I think the signal he is sending [is] that he intends to ensure that jobs are not going to foreign nationals that could be going to Americans,” Elaine C. Young, an attorney with the Kirton McConkie law firm in Salt Lake City, Utah, said a few days after the order was issued. “In some cases, like in much of the H-1B program, employers resort to the expense and hassle of sponsoring a visa because they cannot find workers with the required skills in the United States.”
That’s not always the case, however. Sometimes employers that have hosted an international student after graduation during a post-completing training period decide to keep that person after the training period “because the law allows them to do so, not necessarily because they do not think they can find an American to fill the position,” Young said.
Employers are not required to advertise job vacancies before employing H-1B workers except in the case of certain “H-1B dependent employers” that have a significant number of H-1B workers, Young said. “I could see President Trump broadening the definition of H-1B dependency to capture more employers or expanding advertising requirements to include exempt employees, since many of the H-1B dependent employers are in the IT industry and hire primarily exempt employees,” she said.
“So I would say that Trump is going to focus not just on staving off employment of undocumented workers, but clamping down even more than the Obama administration did on the use of lawfully hired workers, where their employment may be at the detriment of American workers,” Young said.
What to do now
Young said employers should make sure they understand the series of executive orders affecting employment and be on the lookout for more. She said various visa programs are going under study, and employers should review them to see which provisions apply to them now and which will apply to them in the future.
“I think it is going to be difficult for employers to plan with accuracy, but I do think they need to take a hard look at whether there is anything they can modify in their hiring practices that would facilitate hiring Americans instead of foreign workers,” Young said, adding that over the years, she’s had conversations with her clients in the tech sector to look for ways they can help develop a U.S. workforce with the skills they normally recruit from India.
Those employers already know that the H-1B program has been getting more restrictive, Young said. Plus, it is a huge expense. “I hope that this administration works with H-1B employers to better understand why they need the program and how they use it, so that they can find a way to support American businesses that need those workers, rather than assuming that business does not need to hire H-1Bs,” she said.
Employers also need to understand that if they intend to hire international students from one of the seven countries listed in the executive order, those students may not be able to start work as scheduled because their employment authorization documents may not be approved on time.
Looking to the future
The Trump administration has referred to “extreme vetting” as part of the process of deciding who can enter the country. Therefore, Young said employers may notice more scrutiny. Employers are already subject to random site visits from fraud prevention agents with the U.S. Department of Homeland Security, and they also are subject to U.S. Department of Labor audits.
Young said employers may see a change in the factors now used as fraud indicators in the review of visa petitions. She said she’s already been seeing that trend in the wording of Requests for Evidence in H-1B cases, where U.S. Citizenship and Immigration Services is requiring more well-defined evidence of the type of work the H-1B employee will perform and for how long the American business can verify the person will perform that work. That action is an effort “to try to decrease the number of employees coming in through tech sector ‘body shops,’ or placement agencies that do not truly maintain an employer-employee relationship with the worker,” she said.
The dust is still settling on Trump’s executive order on the 90-day ban on people from the seven listed countries, but Leigh Polk Cole, an attorney with the Dinse, Knapp & McAndrew, P.C. law firm in Burlington, Vermont, advised employers with affected employees to urge them not to leave the United States for now.
In an alert to her clients soon after the order was issued, Cole said individuals from the listed countries in any nonimmigrant status as well as applicants for adjustment of status to permanent resident with pending I-485 applications (the form used to apply for permanent residence or to adjust status) should avoid departing the United States until further notice. “This includes travel to Canada, Mexico, and other contiguous territories. At least for now, this includes individuals who were born in one of the listed countries and have become citizens of a country not on the list,” she said.
Cole also said the order on people from the seven countries directs U.S. immigration officials to stop issuing visas and visa renewals at consular posts and to stop travelers at U.S. ports of entry even if they have unexpired visas and/or unexpired I-94 admission records. I-94 is the form used by U.S. Customs and Border Protection to track the arrival and departure to and from the United States of people who aren’t U.S. citizens or lawful permanent residents.
Cole also warned employers that she expects it to be “difficult or potentially impossible to onboard new employees from these countries in 2017 unless they already are in the United States.”
Need to learn more? Join us February 6 for the BLR webinar Trump’s Immigration Executive Order: Impact on Business Travel and Employee H1-B Visas and Green Cards addressing the latest corporate immigration-related concerns related to President Trump’s executive order’s impact on H1-Bs, green cards, and business travel outside of the United States. Elaine C. Young, an attorney in the International section of Kirton McConkie. For more information, click here.
Tammy Binford writes and edits news alerts and newsletter articles on labor and employment law topics for BLR Web and print publications. In addition, she writes for HR Hero Line and Diversity Insight, two of the ezines and blogs found on HRHero.com.