The Trump Administration’s travel ban generated considerable shock, fear, and confusion for citizens, legal residents, and refugees alike. It has also raised concerns for game studios and publishers that employ the people affected by the Executive Order (“EO”). While many are discussing the outrage and constitutionality of the EO, lawyers and immigration professionals have limited information on the future of the ban for those employers who desperately want to protect their non-citizen employees.
There is a good reason for this. The Executive Order is vague and broad in its scope and reach. There has certainly been some confused mishandling in its execution. Although there are still quite a few “indefinites”, here’s what we do know:
- Affected Parties. The EO applies to all nationals from Iran, Iraq, Syria, Sudan, Libya, Somalia, and Yemen. This includes nationals with existing visitor visas (B-1/B-2) and work visas (e.g. H-1B, L-1, O-1). For purposes of the EO it is best to assume that those visas are provisionally suspended until the ban is lifted. Although there has been confusion to what extent the travel ban applies to legal permanent residents (“LPRs”, e.g. green card holders), the ban does not apply to naturalized citizens of the U.S. who originated from the referenced countries.Additionally, all refugee applications by nationals of the referenced countries are suspended for 120 days following the EO, and Syrian refugees are banned indefinitely. The currently available information indicates that affected parties holding dual citizenship with another country are also included in the ban. However, so far (according to reports from the UK and Canada), this only seems to apply if the entrant is traveling from a referenced country.
- Effect of the Executive Order. The EO has a few notable functions. First, it imposes a 90-day ban on admission from all ports of entry into the United States for all Affected Parties, excluding LPRs, who may be subject to secondary screening. This means non-LPR nationals of the 7 referenced countries seeking entry into the U.S. will either be detained or sent back, regardless of whether they have a valid visa or not.But there’s more—the EO requires that the Department of Homeland Security (DHS) and State Department request information concerning individuals seeking entry from the referenced countries. If the referenced countries refuse to provide that information, the ban may become permanent. The EO also orders the USCIS to immediately suspend processing for all immigration benefit applications filed by or on behalf of nationals from the seven referenced counties. This includes work visas renewals, petitions for asylum, green card applications, adjustment of status and naturalization.
Finally, order also suspends the Visa Interview Waiver program, which allows eligible foreign nationals wishing to renew a nonimmigrant visa to request a waiver to the in-person interview requirement.
- Ongoing Concerns. As mentioned above, there is a likelihood that the ban may become permanent for those countries that do not comply with the DHS information requests. Additionally, there is a draft Executive Order circulating that may target legal immigration. Specifically, the order would require DHS to perform site visits to employers of L-1 nonimmigrant workers. Suits have been filed in several jurisdictions challenging the validity, constitutionality, and enforcement of the EO. One or more of these suits may impact short term and long term ramifications of the EO.
For all practical purposes, that summarizes as much as we know about the breadth and scope of this travel ban. The confusion and fear is mostly the result of the unknown ramifications of the order. This bears particular impact on our industry for a few reasons: 1) studio work environments are often fluid—this allows studios to employ or contract foreign nationals who may telecommute from their countries of origin and only come to the U.S. for limited periods of time under a temporary work visa or visitor visa; 2) GDC is on the horizon and falls squarely in the middle of the ban period; and 3) we want to recruit the best and brightest minds regardless of their country of origin. The travel ban creates a more than inconvenient barrier to these objectives. So how can you, as a game studio, prepare yourself for what’s ahead?
Step 1. Cancelling Travel Plans
If you employ non-LPRs from one of the referenced countries that are here on a work or visitor’s visa, you should cancel any international business travel plans on behalf of those individuals. Simply put, they won’t be allowed back in the country at this time, and there is no telling how long the ban will actually be in place. You can’t force them to stay, as courts tend to found of excessive corporate paternalism over employees, but to the extent to can control the situation you should strive to do so.
For LPRs from the referenced countries, international travel may be incredibly inconvenient right now, but should still be possible if proper measures are taken. As mentioned above, LPRs with a valid green card are to a certain extent excluded from the ban. However, Although the administration as confirmed that LPRs should still be able to travel, the fact remains that LPRs have in fact been detained.
If an LPR from the referenced country must travel for business, they should prepare for secondary inspection upon re-entry subject to enhanced screening. They will be asked about their religious beliefs, political views, and social media accounts. They may also be pressured by CBP agents to sign form I-407, “Record of Abandonment of Lawful Permanent Resident Status”. First and most obviously, they shouldn’t sign I-407. Additionally, LPRs departing from the US should a) consult with an immigration attorney and company counsel prior to departure and obtain both a signed form G-28 (Notice of Entry of Appearance as Attorney or Accredited Representative) and a legal opinion letter specifying the basis for re-entry; and b) remain respectful but silent concerning their religious beliefs, political views, etc.
It’s also important to advise those affected employees against personal international travel. Inform them of the risks involved (namely, not being allowed back in the country) and the threat to their personal safety and physical assets in the US if they leave right now. Once again, you cannot force them to stay if they choose to go, but they should be made aware of the consequences.
Unfortunately, this includes those employees or contractors working abroad who planned to attend DICE or GDC. If you have employees or contractors who are nationals of the referenced countries that intend to travel to San Francisco or Vegas for these events, you should contact an immigration attorney immediately to discuss your options.
Step 2. Reviewing Documentation
If you haven’t done so recently, now would be a good time to perform an I-9, Visa, and immigration benefits documentation audit for any employee that may be impacted by the ban. Additionally, you should determine the status of any applicable outstanding work visas, and any pending requests for immigration benefits on behalf of affected employees, including renewals. However, if any such benefits/visas are set to expire during the ban period, those employees should be advised of the risks of over-staying their validity period. Applications and immigration benefit matters for adjudication submitted during the ban may be returned or rejected.
Step 3. Consulting an Immigration Attorney
Now is the time to consult a specialist if you have employees that are affected by the ban. Unfortunately, contacting the USCIS, CBP or ICE right now isn’t likely to give you the specialized information you need for your studio. An immigration attorney with specialized knowledge in the area of immigration benefits and nonimmigrant work and travel visas will be able to give you an idea of the potential outcomes of the ban and how it will impact your current and future employees and contractors.
Step 4. Setting Aside or Finding Alternative Placement Solutions for Future Affected Employees
If you want to hire from the referenced countries in the future, you need to be mindful of the possibility that this ban may become permanent, unless it’s overruled by the Courts or Congress. That being said, if you offer a flexible work environment that does not require your contractor or employee to reside in the US, you should still consider retaining these individuals. As stated previously, our industry seeks out the best and brightest minds regardless of religion, race, gender, or country of origin, and I hope that is a practice we continue.
Step 5. Preparing for Delays
Remember that your studio is not the only one impacted by the ban. Your publishers, investors, distributors, and third party licensors may also experience significant burdens and set-backs because of the Executive Order. We may also face retaliation from the referenced countries, which not only may impose similar bans, but may make trade with the US prohibitive. Expect considerable delays and keep an eye on your force majeure clauses. Any ongoing negotiations should take the ban and future ramifications into consideration. Any future deals should include force majeure events reflecting the current unsettled environment.
Our industry strives for inclusiveness. I would be remiss if I didn’t emphasize this point. If you are minded to continue doing business with individuals and businesses based in the 7 referenced countries, I do not want this ban to discourage your determination. However, doing so will require some vigilance and safeguarding on your part. We are not yet aware of the full reach of this EO or the intent of the Administration in pursuing such action.
About the Author
Written by Mona Ibrahim, Senior Associate Interactive Entertainment Law Group. Mona counsels video game industry clients on business transactions and negotiations, intellectual property portfolio management, privacy and data rules and regulation, corporate governance, investment strategy, international distribution and regulation, and state and federal government compliance. She has worked closely with publishers, developers, and indies for the past 7 years to create long term strategies, going well the beyond the next release date, and ensuring that companies not only survive but thrive. Mona obtained her J.D. from West Virginia University College of Law, and an LL.M. in Entertainment and Media Law from Southwestern Law School. She was admitted to the Washington State Bar in 2009. She is a frequent speaker at industry events like Casual Connect, LOGIN, and PAX Dev and has published several legal articles related to the games industry. She became an avid PC and console gamer at the tender age of 7, when her father introduced her to King’s Quest. Her favorite franchises include Final Fantasy (Square Enix), Tales of… (Bandai Namco), World of Warcraft, and ARMA.