The latest travel ban put forward by United States President Donald Trump has left Canadian companies scrambling to understand how their employee population will be affected while travelling — if they haven’t been already, according to legal experts.
The executive order would ban citizens of Iran, Libya, Syria, Somalia, Sudan and Yemen from the U.S. for 90 days. It would also ban refugees for a period of 120 days.
While the ban was blocked by a federal judge in Hawaii, Trump vowed to appeal the decision — even if it meant a trip to the Supreme Court.
The order has caused concern for employers recruiting foreign talent to travel abroad, or looking to extend worker status or visas, according to Julie Lessard, a lawyer at BCF Business Law in Montreal.
“If you’re a Canadian employer and your workforce needs to travel to the States, you may be affected by the ban,” said Lessard. “If you’re hiring temporary foreign workers who are from the six banned countries, they’re not going to be able to get new visas to the United States.”
While the travel ban will not affect dual citizens travelling with Canadian passports, it will be “discretionary” when it comes to permanent residents born in one of the six banned countries, meaning they could still be denied entry by U.S. customs, she said.
Advice for HR
With a travel ban in place, Canadian HR departments may face practical travel difficulties when sending employees across the border to attend conferences or meet with clients, according to Tomasz Swiecki, assistant professor at the University of British Columbia’s Vancouver School of Economics.
“In the context of the next few weeks, if you are a Canadian company which has cross-border travel involved for some existing employees, this is definitely going to cause some headaches for you,” he said.
HR professionals should immediately pore over the legislation for potential waivers or exemptions that could apply to their company, and keep tabs on how the ruling is interpreted by U.S. border officials going forward, said Swiecki.
HR needs to examine who is travelling, and for what reason, shortlisting any employee who could potentially be affected — especially anyone from the six banned countries, said Lessard.
“They’re not going to be able to get new visas to enter the United States, so you have to change your business model for these persons,” she said. “If they are permanent residents, then it’s discretionary, but you have to look at the risk for you.”
The repercussions of tightening U.S. border policies may prove tricky for HR, all the way back to the recruitment stage, said Lessard.
“It’s getting complex,” she said. “Up to where will you go? Will you discriminate at hire when the rule is discretion and you don’t know if they’ll be able to go to the States or not? Internally, are you going to promote one person more than the other if (their role) deals with travelling and you have no clue whether or not they will be able to travel?”
“If your business model entails necessary U.S. work, how are you going to recruit? How are you going to train your recruiters? Will that constitute discrimination or not?”
For now, HR professionals will be forced to take this executive order in stride, said Lessard.
“If you have contracts upcoming in the pipeline, and your game plan was to rely on that team, if there’s a chance or a risk that they won’t be able to travel, you have to react immediately,” she said. “We have to see how this order will be applied… but even if they would invalidate that second ban, the attitude at borders is already changed.”
Custom officials are asking tons of questions to people travelling, she said, “and it extends to countries that are not covered by the ban. It extends to Canadian citizens who have travelled to these countries. They’re being asked a lot more questions than they have in the past.”
Border officials have gone as far as searching electronic devices, she said. HR should get up to speed and brief their staff on individual privacy rights if faced with this scenario.
Current regulations do not allow border patrols to request passwords, though they are still able to refuse people entry to the country, said Lessard.
And while citizens who are pre-inspected at the border are always allowed to withdraw their application to enter the country, future black-listing may occur, she said.
Canada holds appeal
For skilled immigrants eyeing North America, Canada may take a leading role as U.S. prospects dim and a new fast-track visa program is unveiled by the Canadian government in June. It is expected to clear high-skilled workers for entry within two weeks, compared to a typical wait of six months to one year.
“Longer-term implications may be more significant, in particular to the extent that this ban signifies a broader policy shift in the U.S.,” said Swiecki.
“Canada suddenly becomes much more attractive. This is going beyond this 90-day travel ban — if it is actually lifted — to the extent that you interpret it as to how the administration and the policy at the moment seems to work… you might not be feeling so welcome anymore (in the U.S.).”
“You might potentially see some uptake in applications to Canada. Therefore, for Canadian employers, it might suddenly be an opportunity to scoop up good talent, which otherwise could choose to go south of the border.”
Talented people across the world are looking at the U.S. differently — more negatively — and looking more positively at Canada, said Lessard.
“Even U.S. companies are starting to look at Canada… questioning whether or not they should also open branches or subsidiaries in Canada, because it’s going to be easier to have their international talent enter Canada than the States.”
Despite Trump’s new travel ban, 96 per cent of 202 U.S. HR professionals surveyed in February and March still believe cultivating diversity in the workplace is essential for driving innovation, according to the North California Human Resources Association in San Francisco.
It’s generally accepted that companies benefit from cultivating diverse workforces, said CEO Greg Morton.
“It is overwhelming,” he said of the research.
“And these are the people that know. For them to be just so blatantly in the corner that diversity is critical here, it should make us stand up and take notice when we start to see trends that look like they’re not going to support that.”
Still, the tightening of borders doesn’t mean diversity will be impossible to achieve, said Morton. U.S. companies are still able to pluck talented recruits from highly skilled pockets of the country.
“Diversity is everywhere,” he said.
“Whether that’s male versus female, old versus young, pulling talent from different industries than you typically would... the premise is still there that diversity allows for different perspectives and fresh ideas. It doesn’t always have to be a geographically bound diversity.”
And organizations harnessing that talent will be better-equipped to innovate, said Morton.
“Whether it’s Canada or another country, anywhere where the policies and practices are in place that are more supportive of diversity, over time, they’re going to have an advantage.”
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