What do employers need to know about what is happening now?
Early Executive Orders of the Trump administration focus on increased border security, enforcement priorities, and implementation of enhanced vetting in relation to immigration requests. Immigration officers, particularly at US ports of entry, have started to execute these measures in relation to foreign travelers, including those with valid visas or green cards, seeking to enter the United States in recent weeks.
Travelers attempting to enter the United States, including business visitors and employer-sponsored visa-holders, have reported heightened questioning by Customs and Border Protection (“CBP”) officials and increased scrutiny upon entry. CBP routinely assesses whether a foreign national’s stated purpose in traveling to the United States aligns with their visa or immigration status. However, there appears to be a growing trend with CBP officers employing more in-depth questioning tactics, including:
- An increase in questions, and requests for supporting documentation, relating to the purported reason for entry and proposed activities in the United States to confirm they align with the individual’s visa or immigration status;
- An increase in foreign travelers being sent to secondary inspection for further questioning by CBP officers at US ports of entry; and
- Inspection of electronic devices, including phones and computers.
There are reported rumors with regard to a potential travel ban for citizens of certain countries. Although media reports have identified 43 countries for which varying degrees of travel restrictions may be imposed in the coming days or weeks, there have been no official announcements as of the date of this publication. In the absence of an official announcement and based on reported activities at the border, visa-holding travelers that may face a higher risk of increased scrutiny include:
- Current (or prior) citizens or residents of a country identified in media reports as countries that are likely to be subject to travel bans or restrictions
- Current citizens or residents of a country where there are diplomatic tensions with the United States (e.g., due to tariff policies)
- Travelers with passport stamps evidencing recent travel to high-risk countries
- Individuals traveling while an extension of status is pending or when the traveler’s status is due to expire
- Passport holders with X gender markers on their passports
What should employers do?
With the increase in enforcement and scrutiny involved with travel to the United States, employers should take the following steps now to prepare:
- Ensure employees possess the required documentation and supporting evidence, where necessary, when returning to the United States from international travel
- Establish a communication protocol for employees to alert the legal and human resources department of future travel plans. Designate a point of contact for employees in case of issues while travelling
- Create a company policy with regard to how employees should handle sensitive data on their electronic devices when traveling internationally
- Hold town halls to address employee concerns and discuss appropriate protocol for interactions with immigration officials
- Remain current on immigration news and updates to address employee and business concerns by signing up for USCIS alerts and press releases and reaching out to your Baker McKenzie point of contact with any questions
For further information, please refer to the following resources:
