Tag Archives: Immigration

Guidelines for How Employers Should Respond to DACA Uncertainty

This column was originally published on Entrepreneur.com on 9/7/17.

Yesterday, the Department of Homeland Security (DHS) ordered the wind down of the program known as the Deferred Action for Childhood Arrivals (“DACA”). In a memorandum issued with the rescission order, the DHS announced how the program will end.

DACA was founded by the Obama Administration in June 2012. DACA allows certain illegal immigrants who entered the country as minors to receive deferred action from deportation and eligibility for a work permit. It is estimated that approximately 800,000 individuals are covered by the program.

The DHS memorandum is clear that all current work permits remain in effect and will not be revoked. However, as of September 5, 2017, USCIS will not accept any new DACA requests.

The DACA program is scheduled to terminate on March 5, 2018 unless Congress saves the program. According to a press release by DHS, the deferral was designed “so Congress can have time to deliver on appropriate legislative solutions.”

What should employers do when they have DACA employees in their workplace? Three critical points:

1. Focus on the workplace issue as apolitically as possible.

Some employers will undoubtedly focus on the political, as is their right. However, if employers want to take a stand without creating polarity in their workforce, they are generally advised to be as apolitical as possible. The message is simple: you stand behind your DACA employees and will do what you reasonably can to support them.

2. Provide employees support but be careful of promises.

You can let employees know what you will be doing, such as writing to your senator or legislator. But be careful not to promise DACA employees that you will protect them no matter what. No one knows what the status of the law will be on March 5, 2018. As sympathetic as you may be, you cannot promise that you will protect these employees if the law is to the contrary.

One thing employers can do is seek work permit extensions to the extent permitted by the DHS Memorandum. While the details of seeking extensions should be discussed with immigration counsel, keep in mind that any such extensions must arrive at the USCIS no later than October 5, 2017.

Again, seeking extensions may slake some of the anxiety of DACA employees. But make clear there are no guarantees so they cannot later claim they relied to their detriment on your actions in not developing a plan B.

3. Don’t push employees to lobby for a legislative solution.

Employees may ask you if there is anything they can do to help their DACA colleagues. You can respond that they can contact their representatives in the Senate and House (mentioning that is what you are doing, if that is case.). But make clear that you are responding to their request and whether they choose to reach out to their representatives is entirely voluntary.

Do not reach out to all employees and encourage them to engage in grassroots advocacy (one way or the other). Not all employees will agree, and your doing so will then turn your workplace into a political battlefield. Plus, there are potential legal risks, to boot!

DHS has promised more detail. Stay tuned.

This blog is not legal advice, should not be construed as applying to specific factual situations or as establishing an attorney-client relationship.

3 Ways Entrepreneurs Can Protect Employees From Trump’s Immigration Executive Order

I am pleased to share my latest post to Entrepreneur.

On Friday, President Trump issued an executive order that:

  1. Suspends entry of all refugees to the United States for 120 days;
  2. Bars Syrian refugees indefinitely; and
  3. Blocks entry into the United States for 90 days for citizens of seven predominantly Muslim countries. The countries are: Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen

Four federal judges have blocked implementation of at least parts of the Executive Order. Even so, it appears the Administration will continue to enforce the Executive Order.

This is not a political but a business blog, so I will not focus on the issue of refugees, but focus solely on what the Executive Order means for employers relative to employees who have green cards or other foreign nationals who are lawfully working for them.

On Sunday, the White House Chief of Staff Reince Priebus said the Executive Order is not intended to apply to green card holders. Even so, it is not clear that this is the President’s position. Nor does it appear consistent with ongoing enforcement actions. Even if the Executive Order does not apply to green card holders, there are other foreign nationals lawfully working in the United States on temporary visas. Among the issues for employers to consider are the following three:

1. You can’t be certain employees who travel will be allowed to return.

Employers should not require (or even permit) employees with green cards or other visas from the seven designated countries to engage in business travel outside of the United States. If an employer requires or permits work-related travel outside of the United States as part of their jobs, at least two bad things may happen.

First, on a strictly business level, these employees may not be allowed to return to provide service to their employers. On a more personal level, these employees may be separated from their families and other loved ones. Caring for employees must go beyond work.

2. Educate affected employees about the risk of personal travel.

Employers cannot prohibit personal travel and you wouldn’t want to anyway. Indeed, a foreign national from one of the seven nations may have the legal right under the Family and Medical Leave Act to return to Iran to care for a parent with a serious health condition.

However, employers should consider talking about the risk of traveling outside the United States for those who hail from the seven countries covered by the Executive Order. But employers need to be careful how this is done. Even if well intended, a “rounding up” of employees from these seven countries to discuss the issue can lead only to greater anxiety and more. Plus, employees not from the seven countries may care about the issue, too.

Consider a communication to all employees. Analogy: if there is a new child care benefit, you would not announce it only to those known to have children.

3. Do you take a position?

We often have heard it said there are two topics we should try to avoid: politics and religion. Well, they are now the elephants in the corporate living room, and I am not sure employers can or should entirely avoid them.

A number of large technology employers have condemned the Executive Order. What should you do? Regardless of your politics or presidential vote, this Executive Order may negatively affect you as an employer. It already has increased anxiety among foreign nationals from the seven-targeted majority-Muslim countries.

At a very minimum, leaders are well advised to make clear that they will do what they reasonably can to protect their employees. An example of this may be, not putting employees at risk by sending them out of the country until this issue is resolved. Do not expect a quick resolution.

Some employers may want to go further and express their personal views. In doing so, employers are best to focus on the Executive Order and not the President who signed. it. Said otherwise, focus on the business issue. Some may conclude silence on the “political” issue is best. Fair enough. But sometimes the sounds of silence echo the loudest.

What Trump’s Immigration Executive Order Means for Employers

I am pleased to share my  latest article posted to Philadelphia Business Journal.

Last Friday, President Trump issued an executive order that:

  1. Suspends entry of all refugees to the United States for 120 days;
  2. Bars Syrian refugees indefinitely; and
  3. Blocks entry into the United States for 90 days for citizens of seven predominantly Muslim countries. The countries are: Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen

Four federal judges have blocked implementation of at least parts of the executive order.

Even so, it appears the Trump Administration will continue to back the order, causing questions to arise for employers and what it means for their employees who have green cards or other foreign nationals who are lawfully working for them.

Does the executive order cover individuals with green cards or other foreign nationals with the right to work in the United States?

The answer to this question is unclear. Members of the new administration have said it does not apply to those who hold green cards. But these statements are not law. Plus, even if the executive order does not apply to those with green cards, what about those who hold other visas to work in the United States? Until there is greater certainty, employers should assume the executive order may apply to all employees who are citizens of those seven-designated countries.

Should employers make clear that foreign nationals from the 7-designated countries do not have to travel?

Yes – employers should not require employees who are citizens from those seven affected countries to engage in business travel for them outside of the United States. Why not? We don’t know if they will be able to get back in! Such employees should be assured the absence of such travel will not have adverse impact on their employment status.

What if an employee who is a citizen of one of the seven impacted countries wants to engage in international business travel notwithstanding the executive order?

In these cases, employers may be tempted to say no to protect their employees from the unknown. But the courts have generally rejected “paternalism” as a defense to discrimination and this could be deemed discrimination based on national origin.

In these cases, employers should explain the personal risks the employee is voluntarily undertaking and ask him or her to acknowledge same in writing.

Can employers prohibit personal travel to their homelands by foreign nationals from the 7-designated countries?

This probably is overreaching and could be discriminatory. Is relying on an executive order the scope of which is unclear a valid defense to a national origin discrimination claim? I don’t know the answer and would not want any client to be the test case.

However, employers can and should communicate the risks of personal travel for some. At the same time, we don’t want employees from these countries to feel targeted. The reality is that many already do. So make sure the communication goes to all employees; also, employees not directly affected by the executive order care about their colleagues, too.

What will happen next?

I have no idea. I do know the situation if fluid, and that employers need to communicate with their employees. The level of fear and anxiety that can be found on social media does not remain there. It is in your workplaces, too

This is not legal advice pertaining to specific factual situations.