More Uncertainty for Businesses Now That Travel Ban Allowed

Businesses face a new wave of uncertainty now that the U.S. Supreme Court has allowed President Donald Trump’s third travel ban to go into full effect.

“This is really the first of the travel bans that’s going to be allowed to take essentially full effect,” immigration attorney Sam Adair of Graham Adair in Austin, Texas, told Bloomberg Law Dec. 5. That means it’s “significantly more restrictive” than prior versions of the ban, as curtailed by guidance from the justices, he said.

The Supreme Court Dec. 4 lifted a hold that lower courts had placed on the newest version of the travel ban, announced Sept. 24. But unlike the justices’ prior order—which pertained to the president’s second travel ban—the current ban is able to go into effect without the restriction that foreign nationals with “bona fide relationships” within the U.S. be allowed in.

“The bona fide relationship requirement had put a lot of people at ease” and allowed people to “get comfortable with what was happening,” Adair said. The courts had interpreted such a relationship to include employment with and job offers from U.S. companies.

The newest travel ban also doesn’t have an end date, unlike its predecessors, he said. “It’s essentially permanent until the president decides to lift the ban,” he said.

Policies Already in Place

But many companies already had started prepping after the first travel ban was issued in January, Jorge Lopez of Littler Mendelson in Miami told Bloomberg Law Dec. 5. The first thing a company needs to do is “determine what part of their workforce is going to be subject to this,” and it’s likely that many have at least done so and set up policies for how to proceed, he said.

That includes, for instance, making sure that workers with dual citizenship don’t enter the U.S. on the “wrong” passport, Lopez said.

The travel ban doesn’t apply to individuals with dual citizenship if they enter on a passport from the country that isn’t listed on the travel ban, he said. But mistakenly presenting a passport from one of the listed countries could prevent that person from coming to the U.S. at all, he said.

Lopez, chairman of his firm’s Global Mobility and Immigration Practice Group, said businesses should be careful how they go about implementing these policies. If they’re “too aggressive” in identifying and restricting employees on the grounds they may be affected by the travel ban, it could create a “potential adverse effect that could be seen as some sort of discriminatory conduct,” he said.

Iranians the Largest Group Affected

The number of foreign nationals seeking employment-based temporary and permanent visas is likely relatively small. But Iranian nationals are likely to feel the brunt of the travel ban, in the employment arena, Adair said.

“Numbers wise, it’s a smaller percentage of employees that are going to be impacted by this,” but Iranians “by far” outnumber immigrants from the other affected countries in terms of their presence in U.S. professions, he said. The other countries listed on the travel ban are Chad, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen.

There’s a “fairly significant population of F-1 graduate students” from Iran who want to stay and work in the U.S., Adair said. Under the terms of the ban, Iranians can still access F, J, and M visas, which are primarily used as student visas. But what happens after they graduate remains unclear, he said.

That’s because the language of the travel ban appears to encompass visas that are issued to foreign nationals from the affected countries who are already in the U.S., Adair said. That means it could be used to block Iranians from obtaining an H-1B specialty occupation visa if they’re here on an F-1 student visa. It also could be used to block them from extending H-1B status or seeking an employment-based green card, he said.

Lopez wasn’t so sure. The travel ban “talks about entry,” and the argument can be made that “change of status”—going from one temporary visa to another without leaving the U.S.—is outside its scope, he said. The ban seems largely to affect workers from the listed countries who are on short-term visas and who need a visa on their passport to re-enter the U.S., Lopez said. Those workers and those who are entering the U.S. for the first time are affected, he said.

To contact the reporter on this story: Laura D. Francis in Washington at lfrancis@bloomberglaw.com

To contact the editor responsible for this story: Terence Hyland at thyland@bloomberglaw.com