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Travel ban poses risks to employers

Posted On: Jan. 31, 2017 4:00 AM CST

Green card

An executive order signed by President Donald Trump last week that shuts the borders to refugees and others from several largely Muslim countries is also creating significant problems and uncertainty for many employers with a mobile workforce, experts say. 

These experts are advising employers to avoid international travel by employees from the seven countries named in President Trump’s executive order who are subject to visa waiver restrictions: Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen.

On 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. Still, experts warn the situation remains highly fluid.

Jorge R. Lopez, chair, global mobility and immigration practice group at law firm Littler Mendelson P.C. in Miami, said,“very high level management” at various companies, including their general counsels, are “very much concerned” about what the executive order means for them and their workforces.

Mark D. Koestler, a partner with law firm Kramer, Levin Naftalis & Frankel L.L.P. in New York, said he has heard expressions of concern by both employers and employees. “I’m not sure the administration thought through the practical implications” of the executive order, he said.

Mr. Koestler knows of a case involving a British national who is also a national of one of the seven countries in President Trump’s executive order and is working in the United States on a visa. That man is very fearful his family will be unable to attend his upcoming wedding, Mr. Koestler said.

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

“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,” said Tim Crockett, Atlanta-based vice president of security at HX Global, the U.S. subsidiary of Esher, England-based Healix International Inc.

“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.

Mr. Koestler said also his clients are advising their employees from the seven countries, whether they have dual or sole citizenship, not to travel internationally. That “creates heartache on the business side of things because in an international economy people have to meet ... and now these key individuals won’t be able to participate in person,” he said.

Employees from these seven countries are being warned to reschedule their travel, and that if they go abroad and try to come back in they are likely to “face significant delay,” said Scott Fanning, an associate with Fisher & Phillips L.L.P. in Chicago. 

“We’re not telling employers to issue a blanket travel ban for all their employees,” said Gregory A. Wald, a partner with Squire Patton Boggs in San Francisco. “What we’re having them do on a specific, case-by-case basis is look to see what the situation is” for any given employee.  Do they have a green card?  If not, do they have a work visa? Do they have sole or dual citizenship for one of the affected countries?  That’s the first level of inquiry,” he said.

“Then, depending on the circumstances, we would probably advise an employee not to travel, at least until there’s some certainty here,” said Mr. Wald.

Mr. Crockett said he is advising clients that have concerns about matters of essential travel to consult with an immigration attorney prior to the trip.

“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 ensure that there’s a uniform message being given out about what company policy is in these situations.”

“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, Mr. Cherry added.

“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” or viewed as paternalistic.

In addition, telling employees not to go on personal travel potentially regulates their private lives, Mr. Segal said. An employee who travels to one of these countries to take care of a sick relative could be protected by the FMLA, he noted.

“To me, educating employees on the risk may be better than telling them they can’t go,” Mr. Segal said.