Immigration Policy Risks for Employee Mobility, Business Continuity

The full scope of the Trump administration’s immigration policy is still unfolding, but the revocation of hundreds of student visas and scrutiny of legal immigration has raised concerns among employers about the potential impact on non-U.S. citizen employees and their families.

Why it matters: The reluctance of employees to travel impedes the ability of employers to put talent where they need it most. And, to maintain business continuity, employers must plan for adverse immigration actions involving employees who are working legally but are not citizens: those on temporary visas, including H1-B or temporary protected status, and those waiting for green cards.

Enhanced scrutiny: The Administration’s January 20 executive order on “protecting the United States from foreign terrorists…” calls for enhanced vetting for visa holders and lays the groundwork for a revival of travel bans from certain countries.

•  H1-B and other work visa holders will be subject to enhanced scrutiny in their attempts to re-enter the U.S. under the executive order.

• The press has reported instances of a French scientist denied entry to attend a conference and detention of German tourists and a German national with a U.S. green card. These actions have resulted in several European countries revising their guidance on traveling to America, warning of the need for strict compliance and possible arrest and detention for violating rules.

What might be next: Exclusionary immigration practices considered during the previous Trump administration, may be considered again.

•  News reports indicate that a draft list of countries recommended for travel bans or heightened visa scrutiny has been circulated but nothing has been published yet. Whether current visa holders from countries identified will be exempted remains to be seen.

•  The current H-1B visa application denial rate of 2.5% is expected to increase. In the first Trump administration, the denial rate peaked at 24%, Potential restrictions explored in the first Trump administration--narrowing the occupations that quality for H1-Bs and prioritizing companies that pay the highest wages--are also possible.

Employer take-aways: Immigration company, Boundless, and law firm Foley & Lardner LLP, provide several tips for employers:

Review Travel Policies: Make sure that your policy requires employees to notify you well in advance of international travel.

• Assess risk of international business trips for impacted employees. Advise them of risk for private travel.

Review Employee Visas: Know your current visa holders and their expiration dates. Keep in mind that enhanced scrutiny could impact those applying for extensions or change of status.

• Ensure that an employee’s job details, including job title, location, and pay, match their current visa filing.

Communicate: Maintain an open line of communication with employees and provide regular updates about immigration changes.

Access to Legal Help: If you have many foreign national employees, consider holding a “town hall” session to answer questions. Partner with an immigration law firm to provide one-on-one consultations where needed.

Determine what you’ll do if employees get stuck: Plan for the worst-case scenarios now.

• Evaluate whether to provide paid or unpaid leave during administrative delays or delays in scheduling a visa interview.

• Evaluate allowing employees to work remotely from their home country, considering any international work requirements or legal implications.

The bottom line: It is not clear how far the Administration will go to curtail legal employment immigration, but now is the time to evaluate the impact on current employees and take steps to protect your workforce.