Executive Orders Address Security, Immigration, Regulations

Author: Marta Moakley, XpertHR Legal Editor

UPDATE: A federal court has granted a temporary restraining order that halts the implementation of key aspects of the Executive Order "Protecting the Nation from Foreign Terrorist Entry into the United States."

February 1, 2017

President Donald Trump has signed a number of executive orders that affect employers. These include an order:

Extreme Vetting

The order protecting the nation from foreign terrorist entry into the US details as its purpose to counter "[n]umerous foreign-born individuals" who have been convicted or implicated in terrorism-related crimes since September 11, 2001, "including foreign nationals who entered the United States after receiving visitor, student, or employment visas, or who entered through the United States refugee resettlement program."

The order includes the following provisions that would protect against attacks:

  • A travel ban for 90 days, including suspension of visas and other immigration benefits, to nationals of seven majority-Muslim countries (i.e., Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen). The order does provide the Secretary of State or Secretary of Homeland Security with some discretion on a case-by-case basis;
  • A 120-day suspension of refugee admission from all countries into the US, including those that had previously been fully vetted, in order to review the US Refugee Admission Program and related processes; and
  • A reduction of refugee admissions by half, to 50,000 a year.

Visa holders from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen are subject to the executive action, although the White House has clarified that lawful permanent residents (those with green cards) would be allowed into the US.

As a practical matter, any international business travel for employees who are non-US citizens hailing from these countries should be reconsidered, because these individuals may not be able to board an international flight, or may be barred from returning to the US. Individuals currently in transit may be stopped or detained, and may need to seek redress in the courts.

Even US citizens may be affected when traveling: Iran has barred entry for US nationals as a result of the executive action, and Iraq is considering similar action. In addition, US citizens could soon be subjected to a biometric entry-exit tracking system (i.e., be fingerprinted or iris-scanned) under the order.

In addition to potential issues with travel abroad, international recruiting may become a problem for employers seeking prospective employees from these seven countries. The ban may impede an employer from obtaining employment visas for these individuals. (Even if visas were to be obtained under the Immigration and Nationality Act, the employees may not be able to obtain entry into the US.)

For employees who are unable to return to the US due to the travel ban, an employer should consult its internal policies or consider its options in terms of retaining those employees (if feasible). Possible management options include telecommuting or administrative leave, if practicable.

While many have hailed President Trump's actions as consistent with campaign promises and as being within executive authority, a number of global employers may be adversely affected by the orders, including:

In addition, because the order references minority religions within a country, some have suggested challenges based on the constitution's provision against an establishment of religion. The President clarified in a January 29 statement that "This is not about religion - this is about terror and keeping our country safe."

A number of legal challenges have been filed, including Washington State Attorney General Bob Ferguson's challenge to the executive order as unconstitutional. The reasons for the challenge include "damaging Washington's economy" and "hurting Washington-based companies." Stays issued by courts in individual cases have primarily dealt with the constitutional protection of equal protection of the laws.

Border Security

President Trump's Executive Order on Border Security and Immigration Enforcement Improvements provides for:

  • Securing the southern border of the US;
  • Detaining individuals arrested on suspicion of violating federal or state law;
  • Expediting determinations of those who may remain in the US; and
  • Promptly removing individuals whose claims to remain in the US are rejected.

This order may result in increased workplace raids, which would result in expedited removal proceedings. The order also contemplates the building of additional prisons or detention centers to house detained individuals.

Executive Order on Reducing Regulation

On January 30, 2017, the president issued an order on "Reducing Regulation and Controlling Regulatory Costs," setting a regulatory cap for fiscal year 2017. The order outlines that it is "essential to manage the costs associated with the governmental imposition of private expenditures required to comply with Federal regulations." Therefore, the order details that for every new regulation issued by an executive department or agency, at least two prior regulations be identified for elimination.

In addition, as part of the Presidential budget process, a total amount of incremental costs will be set for each agency. No regulation exceeding the agency's total incremental cost allowance will be permitted in that fiscal year.

Additional guidance will be forthcoming regarding:

  • Processes for standardizing the measurement and estimation of regulatory costs;
  • Standards for determining what qualifies as new and offsetting regulations;
  • Standards for determining the costs of existing regulations that are considered for elimination;
  • Processes to account for costs; and
  • Emergent circumstances that might justify individual waivers of the regulatory requirements.

Executive branch agencies include the Departments of Agriculture, Commerce, Defense, Education, Energy, Health and Human Services, Homeland Security, Housing and Urban Development, Interior, Labor, State, Transportation, Treasury and Veterans Affairs, as well as the Attorney General (Justice).

President Trump signed the order surrounded by a number of small business owners. The US Chamber of Commerce and CEO Thomas J. Donohue released a statement applauding the president "for fulfilling the campaign's promise to take on the regulatory juggernaut that is limiting economic growth, choking small business, and putting people out of work."