The 6 Things Labs Need to Know About the Trump Travel Ban
We’ll leave it to others to argue whether the Trump travel ban is legal, moral or wise. What we can tell you is that while it may be on temporary hold, the travel ban and the policy it embodies are challenges that labs are going to have to deal with sooner or later. Here are […]
We'll leave it to others to argue whether the Trump travel ban is legal, moral or wise. What we can tell you is that while it may be on temporary hold, the travel ban and the policy it embodies are challenges that labs are going to have to deal with sooner or later. Here are the six things you need to know about the travel ban and its practical impact on your lab.
1. What Is It?
The so called "travel ban" is an Executive Order (EO) issued on Jan. 27 to temporarily bar individuals from designated Muslim countries (restricted countries) from entering the US. The EO would actually impose three different entry bans:
|Duration||Entrant Status||Entrant Nationality|
|120 days||Refugees||All nationalities|
|90 days||Citizens, both immigrant and non-immigrant||Iran, Iraq, Libya, Somalia, Sudan, Syria, Yemen|
2. Does It Affect Your Lab?
The ban affects you directly if, like many other labs, you have employees (or want to recruit employees), contractors or business associates who are citizens of the restricted countries.
3. What Is Its Practical Effect?
The term "travel ban" is a bit misleading. Technically, the EO doesn't prevent anybody from leaving the US; it simply bars them from getting back into the country later. Practical impact on your lab:
- It would deter individuals from restricted countries who are currently in the US, including your own employees, contractors and business associates, from leaving the country, e.g., traveling to an international conference or meeting;
- It would bar employees, contractors and business associates from restricted countries who are currently abroad from entering the US to do business with you.
The EO does not deport anybody; but there are concerns that subsequent orders may.
4. Does It Cover Green Card Holders?
One question that has caused confusion is whether the ban would still apply if the person from the restricted country is a legal permanent resident with a green card.
The short answer: Although having a green card will be a big help, it does not guarantee entry.
Explanation: On Jan. 29, the Department of Homeland Security issued a press release stating that in applying the EO, it will "deem the entry of lawful permanent residents to be in the national interest." But the next sentence opens a disturbing loophole. "Absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare, lawful permanent residence status will be a dispositive factor in our case-by-case determinations" (emphasis added).
Translation: Although green card holders will get the benefit of the doubt, the DHS can still bar entry if it has evidence that the individual poses a serious threat.
5. Does It Cover Dual Citizens?
If the citizen of the restricted country is also a legal US citizen, the EO does not apply. However, dual citizens who hold passports of both a restricted and non-restricted country outside the US are covered even if the latter country is a US ally like the United Kingdom, Canada, Australia or Germany.
6. What Should You Do about It?
The key to insulating your lab from the harmful effects of the EO is to keep employees from restricted countries inside the US. But be careful about how you deal with the affected employees:
Wrong Way: One approach is to not let employees from restricted countries travel abroad. While it may be well-intentioned, any policy that imposes an employment restriction on a group of employees based on their country of origin would likely be deemed a form of nationality discrimination banned by federal Equal Employment Opportunity laws. The fact that the policy is designed to protect employees against themselves is no defense. "In the area of civil rights, employees [should be left to] make their own personal risk decisions" without the employer's "paternalistic" interference, according to one court.
Right Way: Recognize that you can't prevent employees from travelling and respect their right to make their own personal decisions. But do everything in your power to encourage them to make the right decision. For example, consider cancelling all international trips involving affected lab personnel through the end of April when the EO is due to expire.
Takeaway: Issue Written Statement of Support. In addition, you might want to do what so many other leading companies across the US have done in response to the EO and issue a written statement to affected employees. Although there is no one-size-fits-all formula, your statement should:
- Express your support for immigration and employees affected by the EO;
- Explain the EO and risks of travelling abroad while it remains in effect;
- Make it clear that you will neither require nor expect affected employees to engage in international business travel for as long as the EO is in effect; and
- Assure affected employees that they will suffer no adverse employment consequences for not travelling.
Suspension of Visa Interview Waiver Program
One part of the Jan. 27 Executive Order that has flown under the radar is the suspension of the State Department's Visa Interview Waiver program, which allows frequent visitors to the US to renew their visas without an in-person interview.
The combination of restoring the interview requirement with expected government staff hiring freezes and cuts will make it harder to renew visas and may force visa holders to cut their stays short. Moreover, the visa issue affects visa holders from all countries, not just the seven Muslim countries covered by the travel ban.
What Labs Should Do: Labs can get out in front of the issue by warning employees with valid nonimmigrant visa status of the risk of significant delays in scheduling visa interviews and postinterview processing.
Many labs employ skilled temporary foreign workers under the H-1B visa program. Although the EO does not cover H-1B visas, the President has repeatedly criticized the program for allegedly crowding out American workers and plans to cap the number of visas granted are rumored to be in the works. Stay tuned…
What Next for the Travel Ban?
Critics have challenged the travel ban on constitutional grounds. On Feb. 3, a federal district court granted a temporary restraining order (TRO) banning enforcement of parts of the ban pending resolution of the underlying lawsuit.
The US Circuit Court of Appeals for the 9th Circuit upheld that ruling, leaving the administration with 4 options:
- Option 1: Give up—which is not likely to happen;
- Option 2: Appeal to US Supreme Court—a likely undesirable option as there are currently only eight Justices and persuading five of them will be difficult;
- Option 3: Fight it out in district court—this would involve significant time and risk;
- Option 4:Rewrite the EO—which is the option the administration chose.
As we went to press the 9th Circuit issued an order acknowledging that the President "intends to issue a new Executive Order and has urged the Court to 'hold its consideration of the case until the President issues the new Order.'" Therefore, further court action is on hold pending the new order. So stayed tuned as we await the new version of the EO and the Court's response on its enforceability.
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