Trump’s Latest Immigration Ban: Already Drawing Business Groups’ FirePresident Trump recently issued two proclamations suspending the entry of many immigrants and other foreign nationals into the United States. These proclamations have caused considerable frustration and uncertainty for thousands of U.S. companies that rely on foreign workers to keep their businesses running. If these proclamations stay in effect, they will block an estimated half million plus people from entering the United States and prevent approximately 20,000 employers from bringing needed workers to the U.S.

Business and immigration groups have decried the rationale for this latest immigration ban – to protect employment opportunities for American workers – and argue that the ban will actually harm a U.S. economy already crippled by the COVID-19 pandemic. Several legal challenges have already been lodged, which seek to have the restrictions struck down.

So, what exactly do the proclamations do?

The First Proclamation

The initial proclamation, which went into effect on April 23, 2020, suspended the entry of those foreign nationals seeking to enter the U.S. as immigrants who (1) were outside the U.S. on the April 23 effective date, (2) did not have a valid immigrant visa on that date, and (3) did not have an official travel document other than a visa – such as an advance parole document – permitting travel to the U.S. to seek entry. This entry ban (originally set to expire on June 22) exempted several specific categories of immigrants, including:

  • Lawful permanent residents (green card holders);
  • Spouses of U.S. citizens;
  • Members of the U.S. Armed Forces and their spouses and children;
  • Those entering under the EB-5 immigrant investor program;
  • Physicians, nurses, and other healthcare professionals coming to the U.S. to conduct research or perform work to combat or alleviate the effects of the COVID-19 pandemic; and
  • Those whose entry would be in the “national interest” as determined by the Department of State and the Department of Homeland Security (DHS).

This proclamation immediately put immigrants all over the globe, including many in line for employment-based visas, in a holding pattern and barred them from obtaining the visas needed to come to the United States. It also hurt many employers who depend on immigrant workers to fill jobs in fields where there’s a shortage of American labor.

Unfortunately, this immigrant entry ban was only the first shoe to drop.

The Second Proclamation

On June 22, 2020, President Trump issued a second proclamation banning thousands of additional foreign workers from entering the U.S. First, this proclamation extends the immigrant ban in the first proclamation through December 31, 2020. Second, it implements new restrictions suspending work visas for nonimmigrants (and their derivative family members) in the following classifications:

  • H-1B specialty occupation workers;
  • H-2B temporary non-agricultural workers;
  • L-1A executives and managers;
  • L-1B specialized knowledge workers; and
  • J-1 interns, trainees, teachers, camp counselors, au pairs, and summer work travel program visitors.

This nonimmigrant ban went into effect on June 24, 2020, and is also set to expire on December 31, 2020.  However, there is ominous language in the proclamation suggesting that both entry bans could be extended even longer.

This second ban, similar to the first, applies to those foreign nationals who were outside the U.S. on the June 24 effective date and, as of that date, did not have either a visa in one of the affected nonimmigrant classifications (H-1B, H-2B, J-1, L-1) or a travel document other than a visa permitting travel to the U.S. This ban also includes several exemptions, including spouses of U.S. citizens, individuals seeking entry to provide temporary labor essential to the U.S. food supply chain, and individuals whose entry would be in the “national interest.”

The National Interest Exemption

One important question is who qualifies for the “national interest” exemption? Both proclamations order the DHS and the Department of State to establish procedures implementing the proclamations. They also give consular officers broad discretionary authority to determine whether an individual visa applicant meets one of the specific exemptions. The second proclamation further directs the DHS, the Department of State, and the Department of Labor to establish standards to determine which individuals, within several broad categories, are covered by the “national interest” exemption. These categories include those who: (1) are critical to the defense, law enforcement, diplomacy, or national security of the U.S.; (2) are involved with providing medical care to individuals who have contracted COVID-19 and are currently hospitalized; (3) are involved in medical research to combat COVID-19; or (4) are necessary to facilitate the economic recovery of the U.S.

Last week, the Department of State published some additional guidance on this “national interest” issue. While this guidance is somewhat general, it does shed some light on what consular officers might look for in certain specific cases. For instance, it states that the “national interest” exemption may apply to those healthcare professionals seeking to come to the U.S. on an H-1B or L-1 visa to alleviate the effects of the COVID-19 pandemic, even if those effects are secondary to the pandemic. Thus, the exemption should cover healthcare workers in fields not directly related to COVID-19, but which have nonetheless been adversely impacted by the pandemic.

What’s Next?

Several legal challenges to the entry bans are already in the works, including lawsuits filed by the American Immigration Lawyers Association and two groups of diversity visa applicants. The business community has also entered the fray. Just last week, a number of industry groups, including the U.S. Chamber of Commerce and the National Association of Manufacturers, filed suit in federal court in California, alleging that the ban on temporary work visas violates the immigration laws, inflicts severe economic harm on American companies, and impedes the U.S.’s ability to compete in the global economy.

At this point, it’s difficult to predict how these legal challenges will play out. But, for businesses that rely on foreign workers to keep their operations staffed, this is a fight worth watching. Stay tuned.

Don’t Dawdle in USERRA’s World: Fourth Circuit Affirms USERRA Violation for Delayed ReemploymentHow long do you have to reinstate an employee following military leave? In Harwood v. American Airlines, the Fourth Circuit found that a delay of six or eight weeks was too long. The Uniformed Services Employment and Reemployment Act (USERRA) says employers must reinstate an employee returning from military leave and if, as in Harwood, there is some obstacle to the employee’s return to the old job, you cannot linger too long in placing him or her in an alternative position or you may be on the hook for back wages.

Background

Thomas Harwood was a commercial pilot for American and was also a major general in the Air Force Reserve. From June 2013 through August 31, 2015, Harwood was on military leave. Before the end of his tour he informed American of his intent to return and requested he be assigned as a domestic flight captain out of LaGuardia Airport. American agreed and let Harwood know that his retraining would begin once he reported back to work on September 1.

In preparation for his return to American, Harwood had to obtain a medical certification from the FAA. Because he had been diagnosed with atrial fibrillation during his military tour, the FAA denied the certification. Harwood sought a waiver and submitted all the requested documentation. He informed American of the problem on August 20, 2015, said that he still wanted to be reemployed as a pilot, and suggested American allow him to take his 854 hours of accumulated sick leave until he obtained the clearance. American responded that it could not reemploy him as a pilot without the medical certificate or a waiver. In early September 2015, American told Harwood that it was willing to put him “back to work in a reasonable time” but since he was not medically qualified to fly it would explore reasonable accommodations to get him back to his position as a line pilot. If nothing could be done to return him to flying status, American would “explore other paths.”

At that point, Harwood retained counsel. On October 1, Harwood’s lawyer informed American that Harwood’s goal was to be reemployed as quickly as possible to get access to his 854 hours of sick leave. If he could not be reemployed as a pilot because of the medical clearance, Harwood believed he should be placed in a position of comparable status and pay. American responded on October 22 (about six weeks after Harwood was to have returned to work), offering to extend his military leave until the medical waiver came through or, alternatively, to create a position appropriate for his status and with equal pay. Harwood declined both options and spent the next three months on military active duty (for which he received military pay). On January 25, 2016 (a little over five months after his original deployment ended), Harwood accepted American’s offer for the custom position. On that same day, Harwood received his medical waiver so American reassigned him as a domestic flight captain the next day.

All’s well that ends well – right? Not so fast. Over a year later, in April 2017, Harwood sued American under USERRA alleging that it had (1) discriminated against him based on his military status and (2) failed to reemploy him promptly when he returned on August 31, 2015.

USERRA Requirements

The Fourth Circuit noted that USERRA “was enacted to protect the rights of veterans and members of the uniformed services” and therefore “must be broadly construed in favor of its military beneficiaries.” Under USERRA’s anti-discrimination provision in Section 4311 [38 U.S.C. § 4311], an employer cannot discriminate against a servicemember employee by taking any adverse action “on the basis of” the service, where the service was a “motivating factor” in the employment action.

According to its Section 4312, USERRA provides reemployment rights for a returning servicemember if:

  1. The returning servicemember gives advance written or verbal notice of uniformed service;
  2. The service time does not exceed five years; and
  3. The servicemember submits an application for reemployment.

According to Section 4313, once qualified for reemployment, the employee is to be “promptly” reemployed. The default reemployment position is the “escalator position” – where the employee would have been “or a position of like seniority, status and pay.” If the returning servicemember is injured or disabled during service, he or she is to be reemployed “in any other position which is equivalent in seniority, status and pay.” USERRA’s interpreting regulations unhelpfully define prompt reemployment to mean “as soon as practicable under the circumstances of each case.”

District Court Ruling 

The district court dismissed Harwood’s discrimination claim but granted judgment to him on his claim that he was not promptly re-hired. The court awarded Harwood his backpay with interest but offset by the amounts he received from the Air Force during the period of delay. The district court also found that the airline had not acted willfully, so it did not award liquidated damages. The court found that any injunction was not warranted based on this one-time misunderstanding. Both Harwood and American appealed.

Fourth Circuit Agrees That American Did Not Discriminate…

The appellate court agreed that Harwood’s discrimination claim was properly rejected based on the lack of discriminatory intent, which was made up of some scattered comments made 15 years earlier about Harwood’s military service. Further, the court held that American’s actions were not willful in the sense of any anti-military animus. The court affirmed the non-discrimination dismissal even though it noted that the district court should have construed the statute more broadly because it applies to reemployment decisions and not just after-reemployment actions.

But American Was Too Slow to Offer an Alternative Position

The court agreed with Harwood and the lower court that American had not acted promptly enough to identify and place him in an appropriate alternative position. Harwood notified American of his flying limitations on August 20 and was supposed to return to work on September 1. American did not actually offer him the alternative position until October 22, over two months after learning that he would need to be rehired in a non-pilot position.  In the court’s estimation, American had nearly two weeks to figure out the alternative position for him before he was to start, and then it was another six weeks after that before American offered the alternative position. Although the court found American violated USERRA, it agreed with the district court that the violation was not willful, based on the immediate agreement to rehire Harwood and efforts to accommodate his requests.

The court also reexamined the damages awarded, concluding that Harwood should receive backpay only for the period of September 1 (his planned return to work date) through October 22, when the alternative position was offered (if truly an equivalent position). The court found Harwood was not entitled to backpay after October 22 because it was Harwood’s decision to not accept the offered position until January 25. The case was remanded for the trial court to determine whether the position offered on October 22 was truly equivalent for purposes of USERRA.

Lesson: USERRA Requires Prompt Attention

USERRA requires a lot from employers. In this case, American appeared to want to do the right thing and prepared for Harwood’s return, but it should have moved more quickly when there were problems. Employers should be keenly aware of their employees who are or will be entitled to USERRA protections and act promptly when curveballs are thrown.

Department of Labor Provides Easier, Breezier FMLA Electronic Notice Forms for EmployersIn a shocking example of good news these days, the Wage and Hour Division has revised its optional forms that employers can use on various FMLA issues. The new forms can be filled out electronically and have cut down on the number of questions that require written responses. Instead, many categories can now be handled by simply checking a box. Also, in this time of social distancing, they can be signed electronically (no contact!).

The DOL hopes that employers will use these forms and that the new detail will help reduce any FMLA violations. The forms are below:

Eligibility Notice (informs employee of eligibility or reason why they may not be eligible)

Rights and Responsibilities Notice (informs employee of their obligations associated with FMLA leave request)

Designation Notice (informs employee whether the leave request is approved and the amount of leave)

The DOL also provided revised forms for healthcare providers to use in the certification process:

Employee with serious health condition

Family member of employee with serious health condition