Jan 31, 201711:58 AMOpen Mic
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How will employers have to respond to Trump’s Muslim ban?
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You may have heard by now that Donald Trump signed an executive order on Jan. 27. The order, titled “Protecting the Nation from Foreign Terrorist Entry into the United States,” suspended the issuing of immigration visas and other immigration benefits to citizens of several Middle Eastern countries.
Summary of the executive order
According to the New York Times, the executive order “indefinitely barred Syrian refugees from entering the United States, suspended all refugee admissions for 120 days and blocked citizens of seven Muslim-majority countries, refugees or otherwise, from entering the United States for 90 days: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. … After the order was signed, students, visitors, and green-card holding legal permanent United States residents from the seven countries — and refugees from around the world — were stopped at airports in the United States and abroad, including Cairo, Dubai, and Istanbul. Some were blocked from entering the United States and were sent back overseas.”
The executive order led to a crazed weekend, with confusion among government agencies about the scope of the order, detention or denial of entry into the United States for individuals with approved visas and green cards, nationwide protests for the second time in just under a week for the new administration, and emergency legal actions to limit the immediate harm. It also led to a retaliatory ban on American citizens entering Iran.
With the start of a new workweek, how do companies and human resources staffs need to respond to the impact of this executive order?
Before I get to the legal and HR issues, I need to take a moment to comment on this ban. Many commentators have said much already. I usually would not criticize political actions in such an article and would focus instead on the impacted legal and business issues. I realize this additional commentary may be off-putting to readers and even potentially harmful for future prospects. I understand if that is your reaction and accept any subsequent consequences. However, this executive action offends core constitutional principles and values that I respect as an immigrant and as an attorney. Therefore, I cannot simply gloss over its obnoxious aspects.
Why the executive order is immoral and unconstitutional
The executive order imposed a travel ban on people who had been approved for visas and for green card holders. People in these categories had done nothing wrong, had not even been suspected of committing a violation, and yet had their legally earned status revoked. Graduate students, workers, and families all had their lives uprooted without a hearing or an opportunity to challenge the basis of the decision. Such effects practically scream that the order was unjust and would very likely violate the due process clause of the U.S. Constitution. And yet this administration rushed ahead with its plans, without seeking proper legal or operational guidance about the order’s effects.
During the election, candidate Trump called for a ban of all Muslims traveling to the United States. Coincidentally, the order targets seven Muslim-majority countries. Right on the heels of issuing the order, Trump stated that he wants to give preference to Christian refugees. Trump’s statements and actions demonstrate a clear bias against a religion and its practitioners. Is that illegal in the immigration context? I am not sure. However, our civil rights laws forbid religious discrimination. Our Constitution states there shall be no religious test for public office. And yet, we are going to make immigration decisions based on a person’s religion and hold that religion against them?
The most disheartening part of this executive order is its effect on refugees, especially refugees from war-torn Syria. The order suspends any refugee admissions for four months, pending a review of the security screening process. It also cuts down the quota for refugee admissions for fiscal year 2017 from 110,000 to just 50,000 and prevents admission of Syrian refugees until a time that Trump determines their entry is consistent with the national interest. This means Syrian refugees may be admitted again starting around June 2017 or they may have to wait much longer.
What was the driving force behind this decision? Has there been an outbreak of terrorist acts by refugees? According to CNN, there have been zero terrorist attacks by refugees from 1980 until September 2016. In September 2016 there was one incident at Ohio State University by one Somali refugee. However, many other incidents that could be characterized as terrorist acts were not by refugees. One incident in 36 years is somehow sufficient for this administration to impose a total ban on refugees for four months and to reduce the overall quota by about 60,000. In reality, there are only about 20,000 spots left, because almost 30,000 have been used up since fiscal year 2017 began in October 2016.