The 7 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 likely 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 countries (restricted countries) from entering the U.S. The EO would actually impose three different entry bans:

2. What is the Current Status of the Ban?
Critics have challenged the travel ban on constitutional grounds. The underlying lawsuit will take time to adjudicate but 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.

It is worth noting that in the government's latest brief filed before the order to put litigation on hold pending a revised EO, the government argued that the language of the initial EO and its intended scope was misunderstood.

The administration immediately appealed but the U.S. Circuit Court of Appeals for the 9th Circuit upheld the lower court ruling, leaving the administration to decide whether to give up on the ban, appeal to the U.S. Supreme Court, fight in district court or revise the EO. The administration chose to revise the EO. As we went to press, the 9th Circuit had issued an order acknowledging that President Trump "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 with regard to the TRO and the constitutionality of the EO is on hold pending the new order.

It is worth noting that in the government's latest brief filed before the order to put litigation on hold pending a revised EO, the government argued that the language of the initial EO and its intended scope was misunderstood. The government brief explained that the EO's "principal focus is on aliens who have never entered this country and have no connection to it." The government's brief argued the court had concluded that the EO affected lawful permanent residents, aliens already in the U.S. and aliens who sought asylum from persecution.

The government's brief argued the EO did not violate constitutional rights because those intended to be affected had not yet entered the U.S. and thus were not protected by the U.S. Constitution. "Properly construed, the Order falls well within the President's statutory authority to 'suspend the entry of all aliens or any class of aliens,' 8 U.S.C. § 1182(f), and the U.S. Constitution," the brief asserts.

Therefore, it is reasonable to suspect that perhaps the revision will seek to more definitively draw this distinction in order to argue there is no constitutional bar to the order. Stay tuned to see how this plays out. But in the meantime it is wise to understand what a similar EO could mean for your lab. The following points help you gain some insight into the EO.

3. Could the EO Affect Your Lab?
The ban would affect your lab 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.

4. What Is Its Practical Effect?
The term "travel ban" is a bit misleading. Technically, the EO doesn't prevent anybody from leaving the U.S.; 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 U.S., 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 U.S. to do business with you.

The EO does not deport anybody; but there are concerns that subsequent orders may.

5. 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.

If the citizen of the restricted country is also a legal U.S. citizen, the EO does not apply.

6. Does It Cover Dual Citizens?
If the citizen of the restricted country is also a legal U.S. citizen, the EO does not apply. However, dual citizens who hold passports of both a restricted and non-restricted country outside the U.S. are covered even if the latter country is a U.S. ally such as the United Kingdom, Canada, Australia or Germany.

7. What Can 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 U.S. 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 period in which the travel ban remains in effect.

Takeaway: Issue Written Statement of Support. In addition, you might want to do what so many other leading companies across the U.S. 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.