United States: Immigration Fact and Fiction for the U.S. Employer: Know Your Rights – 5 Things to Tell Your Foreign National Employee in the Current Climate

On February 21, 2017, Department of Homeland Security (DHS) released two memoranda signed by DHS Secretary Kelly addressing immigration enforcement.  While a sitting President cannot independently modify laws or regulations without going through the normal rule making process, he/she can significantly alter policy and enforcement priorities.  These two memoranda are a clear example of a shift in focus.  While the memos largely address individuals who are undocumented, your foreign national employees may be collaterally impacted as a result of being inadvertently involved in an enforcement action, when encountering an emboldened DHS officer or even in dealing with local police officials, given their new immigration related authority.

We provide a brief overview of several issues one may encounter.  We will provide additional information in subsequent postings as these directives, and others, continue to evolve.

1. Fact or Fiction, Can Your Foreign National Employee be Detained by DHS?

The new Kelly memos make it clear that the previous administration's "catch and release" program is over.  The administration vows to deter illegal immigration by aggressively detaining noncitizens and expanding the categories of individuals who are considered priorities for removal.   The broad language of the memos suggest that  a foreign national employee could be detained and deported if he/she is convicted of a criminal offense, charged with a criminal offense, or even has committed acts that could rise to a chargeable criminal offense.  Assuming your employee has proper visa classification and he/she has been maintaining status, all should be OK.

As the law requires, we recommend all foreign nationals carry with them, at all times, proof of immigration status.  This means if your employee is a nonimmigrant worker (H-1B, L-1B, E-3, etc.) he/she should carry his/her Employment Authorization Document, I-94 card, passport with entry stamp, or other proof of lawful presence (or at least a photocopy of the relevant documents and be able to access the original quickly if needed).  If your employee is a Lawful Permanent Resident, he/she should carry his/her greencard (or at least a photocopy and be able to access the original quickly if needed).  Employees should have handy the name and contact information of their supervisor or HR representative who can also verify their employment details.

2. Fact or Fiction, Can the Company Continue to Employ a Foreign National Worker Authorized to Work Pursuant to DACA (Deferred Action Childhood Arrivals)?

As per the Questions and Answers guidance provided by DHS subsequent to the release of the memos, DACA continues as a program.  That means that if your employee is a DACA beneficiary and is employed pursuant to a valid Employment Authorization Document (EAD), you can continue to employ him/her and they can continue to renew their work permit.   This may change in the near future but for now it stands.

Some leaked Executive Orders (EO) have included provisions to end "amnesty programs."   If this should happen, a DACA beneficiary will lose his/her permission to work in the United States.  Short of marrying a U.S. citizen, most DACA participants have no other immigration relief or form of work eligibility.  We have some hope that when implementing any new executive orders, the government will allow the "Dreamers" to continue working at least through the expiration of their current EADs so that both employers and employees alike are not impacted suddenly.

3. Fact or Fiction, Can the Company's Foreign National Employees Continue to Travel Abroad?

Yes, but customs officers at airports and other ports of entry may question the employee about their immigration status and underlying eligibility for that status.   If the employee is selected for a longer interview during the admission process, he/she will be sent to a "secondary inspection" area.  While United States citizens have the right to have an attorney present during questioning, non-citizens generally do not have such a right while the officer determines whether or not to admit the foreign national employee.

Please advise your employees that if a DHS officer's questions have to do with anything other than the foreign national's immigration status, he/she does have the right to an attorney but it is unlikely that such requests will be granted until after the questioning is completed.

Also, employers should be warned that we expect a new Executive Order (EO) re-implementing the "travel ban" will be issued next week.   While foreign nationals of the 7 countries noted in the previous EO, namely Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen, will be surely impacted, it is possible the new EO will extend a "travel ban" to other countries.  As such, we recommend foreign nationals from these 7 countries not travel abroad at this time, and we will keep you updated as the new EO is released to warn potentially additional foreign national employees against travel.

4. Fact of Fiction, Can a Customs and Border Protection (CBP) Officer Review My and/or a Foreign Employee's Personal Electronic Devices and /or Social Media Accounts?

Since 2008, it has been the position of CBP that it may, upon a "reasonable suspicion", inspect electronic devices, such as phones and laptops.  Moreover, this can result in CBP confiscating the devices for several weeks or months.  As such, employees should take proactive steps to ensure the confidentiality of client, customer and proprietary information.   This means that phones and computers should contain only information that is needed for the business trip. Some employers may want to provide laptops and phones that are used solely for business trips and do not contain any sensitive information.   Basically, if the employee does not need the device or information for the trip – it should be left at home.

With respect to social media, CBP Officers have recently been requesting passwords to review an applicant for admission's social networking activity.  In addition, social media questions – while not yet mandatory – have been added to the ESTA online application.  ESTA provides visa free travel to nationals of certain designated countries.  As such, it appears that the trend will continue so employees should continue to utilize social media judiciously and remember that no post in cyber space is confidential.

5. Fact of Fiction, Do These Changes Impact a Foreign Worker's Privacy Rights?

The memorandum addressing this issue states that DHS will no longer afford Privacy Act rights and protections to individuals who are neither U.S. citizens nor lawful permanent residents.  Since 2009, DHS has treated personally identifiable information (PII) as subject to the Privacy Act. PII includes information that is collected, used, maintained, or disseminated and includes U.S. citizens and LPRs, as well as visitors and undocumented persons.

Non-U.S. persons have had the right of access to their PII and the right to amend their records, absent an exemption under the Privacy Act.   It is unclear whether the 2009 guidance will remain in place until the DHS Privacy Office develops new guidance and it is unclear what DHS intends as to the scope, purpose, and intent of the new guidance.   For example, if your foreign national employee commits a crime or is even suspected of committing a crime as determined by an immigration officer, the employee's name may be placed on a list which DHS will be begin publishing and making public soon.


Most employers are committed to having a diversity of talent and to the fair and equal treatment of all employees, whatever their background, so perhaps this is a good time to share such a message with your employees.  It is probably beneficial to include that as an employer, the company will aim to support and protect colleagues, regardless of their race, country of origin, and religion or belief system, and that the previous (and perhaps future) executive orders, as well as memoranda are only likely to affect a small minority of employees but are still taken very seriously.  Confirming that impacted employees can reach out to local HR partners or managers if they have questions or concerns is highly reassuring to most employees.

Immigration Fact and Fiction for the U.S. Employer: Know Your Rights – 5 Things to Tell Your Foreign National Employee in the Current Climate

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.