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Employers urged to wait for clarity on U.S. travel ban

Posted On: Jan. 30, 2017 2:54 PM CST

Experts are advising employers for now to avoid international travel by employees from the seven countries named in President Donald Trump’s executive order who are subject to visa waiver restrictions.

President Trump signed an executive order last week that suspends entry of individuals from seven countries now subject to visa waiver restrictions: Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen.

Sunday, the White House pulled back on part of the temporary ban on visitors from the seven countries by saying it would not apply to individuals with green cards granting them permanent residence in the United States, although experts warn the situation remains highly fluid.

“Employers are concerned about the international mobility of their workforce,” Jacob D. Cherry, an associate with Ogletree, Deakins, Nash, Smoak & Stewart P.C. in Atlanta, said Monday.

“We’ve had a few inquiries from our clients that do not have projects or ongoing business in any of the targeted or named countries that come under the plan,” Tim Crockett, Atlanta-based vice president of security at HX Global, the U.S. subsidiary of Esher, England-based Healix International Inc., said Monday. “However, they do have employees who are U.S. or Canadian citizens that obviously are from those countries, and they’re concerned” as to how this will affect their travel in and out of the U.S.”

“At the moment, we are advising that any employee who is potentially subject to the order refrain from international travel,” said Mr. Cherry. “Part of the difficulty, of course, is that the Department of Homeland Security has issued some conflicting statements, particularly with regard to legal permanent residents. 

“Out of an abundance of caution, we are advising that employees who potentially would be impacted under a broad reading of the executive order refrain from travel until clarification is given,” Mr. Cherry said.

Mr. Crockett said he is advising clients that have concerns about this issue where it is a matter of essential travel to consult with an immigration attorney prior to travel.

“It’s a very fluid and dynamic situation, and a lot of it is based on the interpretation of the rules at port of entry, so I would imagine in the days and weeks ahead there will greater clarity of what would get greater scrutiny and what would perhaps impact the traveler,” Mr. Crockett said. “But at this stage, I think there’s too much uncertainty and vagueness as to what are the rules and what are the sort of governing criteria.”

Mr. Crockett said also he believes custom and border officials’ overriding concern would not necessarily be where travelers are from as much as their recent travel history.

He also suggested that if employers do have concerns about this issue, “it may be wise to proactively reach out” to federal officials including those from the Department of Homeland Security “and seek greater guidance so you’re more plugged into whatever emerging guidance is coming out” and can better inform employees.

In addition, said Mr. Cherry, “We’re advising that employers maintain communication with their employees, but at the same time insure that there’s a uniform message being given out about what company policy is in these situations.”

Mr. Cherry also said, “For employees who are unable to return to the U.S., employers need to evaluate carefully other considerations,” including whether working abroad creates immigration, tax law or other employment issues they need to be aware of.

“You don’t want to require anyone who may be on a permanent or temporary visa from one of the seven countries to travel. They may not be able to get back,” Jonathan A. Segal, a partner with Duane Morris L.L.P. in Philadelphia, said Monday.

Mr. Segal said the issue also raises potential concerns under discrimination laws and the Family Medical Leave Act. For instance, he said, if an employee says he is willing to take the risk of international travel and the employer refuses to let them take that risk, “you’re treating the foreign national differently from someone who is born here, and that could be deemed discrimination” and viewed as paternalistic.

In addition, telling employees not to go on personal travel potentially regulates their private lives. Also, an employee who travels to one of these countries to take care of a sick relative could be protected by the FMLA.
“To me, educating employees on the risk may be better than telling them they can’t go,” Mr. Segal said.