Immigration Policy Choices Under the New Administration

by Epstein Becker & Green

Epstein Becker & Green

Now that the election is over, focus turns to the U.S. immigration policy of President-elect Donald J. Trump’s administration over the next four years. Forecasts of this type are never easy with any new President; the task is even more difficult this year because immigration policy dialogue during the campaign focused so heavily on illegal immigration and the Mexican wall. The critical questions to which our clients seek answers concern the policies that will define “business” immigration. 

In this Special Immigration Alert, the Immigration Law Group at Epstein Becker Green will discuss 10 areas that impact business immigration and explore potential paths that the Trump administration might follow in addressing them.

  1. Executive Orders: During the campaign, President-elect Trump indicated that he would vacate all executive orders issued by the Obama administration In the immigration area, the relevant executive orders would, in large part, consist of the Deferred Action for Childhood Arrivals (“DACA”) and the Deferred Action for Parents of Americans (“DAPA”). As our readers know, DACA and DAPA have been subject to numerous legal challenges since these executive orders were issued. Nevertheless, thousands of foreign nationals (“FNs”) received work authorization under these programs and are now employed within the United States. If  DACA and DAPA are vacated, these FNs would lose their temporary protection against removal and their right to work in the United States. Employers need to start planning now for this possibility.
  2. Temporary Protected Status (“TPS”): Under the immigration laws, the U.S. President has authority to grant TPS to citizens of any country who are temporarily unable to return to their home country due to ongoing armed conflicts or natural disasters. Those in TPS status are granted temporary refuge here and permitted to work. If it follows several recommendations of the Center of Immigration Studies, as some Trump supporters have suggested, the Trump administration could restrict the circumstances under which TPS grants are issued and terminate current grants earlier, requiring affected FNs to return home sooner. 
  3. Free Trade Agreements (“FTAs”): A major focus of the Trump campaign was the renegotiation/repeal of the North American Free Trade Agreement (“NAFTA”). The United States is a party to other FTAs with Chile, Singapore, and Australia that were not a primary focus of the campaign. Each of these FTAs contains immigration provisions. The questions are what, if anything, the Trump administration will do regarding these FTAs and what impact, if any, the administration’s actions may have on continued immigration under these FTAs or on the status of those FNs already here.

    The concern about the continuing viability of these FTAs as a source for immigration is real, but the likelihood of an immediate abrogation of these FTAs and their immigration provisions is not great. At the outset, it seems that the Trump administration will focus more on immigration enforcement than on the FTAs, given the emphasis in candidate Trump’s campaign regarding the need to address southern border security issues and the problems posed by aliens in this country who have committed crimes. Moreover, even if cancelling these FTAs was formally pursued by the administration, most contain provisions that require six or more months of prior notice, and Congress may want to weigh in on this process as well. 
  4. Nonimmigrant Classifications (H-1B/L-1B): During the campaign, candidate Trump indicated that he wanted to revamp the H-1B program because it took jobs away from Americans. Since the H-1B program is largely statutory, it would be hard for any change to be effected immediately. With a Republican Congress, and historical Democratic opposition to the H-1B program, however, this could be an issue on the legislative agenda for 2017 if there is public pressure for immigration reforms. While the ultimate package is uncertain, there is a possibility of aligning the entire H-1B program with the current requirements for H-1B dependent employers. H-1B dependent employers are those that employ 15 percent or more H-1Bs as part of their overall workforce, and they are required to demonstrate the absence of qualified U.S. workers before an H-1B petition can be approved for a new employee.  

    Although the President-elect and his transition team have been relatively silent on other temporary working visa classifications, the L-1B classification has been the subject of controversy since December 2003, when Business Week published an article entitled “A Loophole as Big as a Mainframe.” The gist of the article was that third-party consultants were able to circumvent the salary requirements of the H-1B program by classifying their IT professionals as experts with “specialized knowledge” under the L-1B category. Following this article, Congress passed the L-1B Reform Act, which put limitations on the ability of consulting firms to place L-1B employees on worksites that were not their own. U.S. Citizenship and Immigration Services (“USCIS”) also began issuing progressively narrow interpretations of the L-1B definition of “specialized knowledge” to address this issue. This trend continued until March 2015, when USCIS issued what the agency characterized as “more relaxed” guidelines. In practice, the L-1B classification remains a volatile area in business immigration and, thus, may attract scrutiny from the new administration.

    Like the H-1B program, the L-1B classification is statutory and immediate changes to the program are therefore unlikely. However, the new administration could issue guidance returning USCIS back to an even more restrictive interpretation of “specialized knowledge,” and this would have a much more immediate impact on the eligibility of FNs for this classification. Here also, the new administration could ramp up the number of anti-fraud site visits at L-1B employers to make sure that they comply with the L-1B Reform Act. If this occurs, it likely would have a disproportionate impact on smaller organizations that do not utilize the blanket L program.
  5. F-1 Optional Practical Training (“OPT”): OPT has become an increasingly controversial component of the U.S. educational system. Prior regulations allowed foreign students up to one year of OPT work authorization following graduation. Recent regulatory changes have increased the authorized OPT work period up to three years if the FN has a STEM (Science, Technology, Engineering, and Mathematics) degree and the employer is registered with and using E-Verify. Several people reportedly advising the President-elect on immigration policy have expressed opposition to OPT because, in their view, it siphons employment opportunities from U.S. workers. Under the Trump administration, we can expect this debate to continue. The alteration or elimination of OPT work authorization, however, would require changes in the existing regulations. These changes do not appear to be imminent.
  6. Spousal Employment: Many spouses of FNs legally in the United States are authorized by statute to work. Examples are the spouses of E and L nonimmigrants and applicants for permanent residence. In many other cases, however, spousal employment rests on regulatory provisions. Examples include employment authorization granted to the H-4 spouses of H-1B nonimmigrants who are the beneficiaries of approved I-140 petitions, or who are permitted to work here beyond six years pursuant to Section 106(a) of the American Competitiveness in the Twenty-First Century Act of 2000. Any administration emphasis on creating more job opportunities for Americans suggests that these regulatory provisions might be part of efforts to review the existing immigration system. Revising those provisions, however, cannot be accomplished by executive order and will require a regulatory change.
  7. Visa Processing: Most FNs seeking admission to the United States must first apply for and secure a visa. During this visa application process, the U.S. Department of State conducts security and background checks to make sure that the FN does not pose a threat or otherwise violate U.S. immigration requirements. Throughout the campaign, candidate Trump repeatedly promised to enhance the current U.S. immigration vetting process to prevent terrorists and criminals from entering the country. If the vetting process for FNs applying for U.S. visas is materially changed, this may significantly delay the immigration process for everyone.

    At the same time, the Visa Waiver Program (“VWP”) has come under additional scrutiny because it represents an exception to the standard visa application process. Given President-elect Trump’s stance on tightening the security screens on any FN seeking admission to the United States, it is likely that the VWP will also be under scrutiny in any Trump administration immigration policy review. 
  8. Expansion of E-Verify: E-Verify is the system offered by the federal government to check the identity and work authorization of all new employees. With certain exceptions, it currently is voluntary for most employers, except in states that mandate its use. Arizona was the first state to require employers to use E-Verify or risk loss of their license to do business in the state, and the state statute imposing this requirement, the Legal Arizona Workers Act, was upheld by the U.S. Supreme Court in Chamber of Commerce v. Whiting, 563 U.S. ___ (2011). With its emphasis on immigration enforcement and a sympathetic Congress, the Trump administration might place mandatory use of E-Verify high on its legislative agenda.
  9. Worksite Enforcement: The Trump administration is likely to increase the amount of worksite enforcement significantly. President Obama has largely managed worksite enforcement through large fines levied by Immigration and Customs Enforcement for Form I-9 violations; the Obama administration expected this policy to deter employers from hiring and retaining FNs not authorized to work. Under a Trump administration, we expect to see less Form I-9 enforcement through fines and more enforcement through criminal prosecutions, as well as possible unannounced employer worksite inspections aimed at those suspected of employing undocumented workers.
  10. Proposed Regulations: At the present time, there are several proposed regulations that are working their way through the federal government’s rulemaking process. This includes the Obama administration’s proposed rules on international entrepreneurs and the U.S. Department of Labor’s proposals to modernize the PERM labor certification process. Given President-elect Trump’s often expressed opposition to new regulatory proposals and support for rolling back existing regulations, the future of these and any other regulatory initiatives is in doubt.

    On November 18, 2016, USCIS issued a final rule containing improvements to the EB-1, EB-2, and EB-3 immigrant classifications that the Obama administration designed to retain FNs who are the beneficiaries of employer-sponsored petitions in those classifications.  According to USCIS, this rule will provide (i) improved process and certainty for employers seeking to sponsor and retain FN employees, (ii) greater stability and job flexibility for these FN workers, and (iii) more administrative consistency to USCIS adjudications of the applications involving these FN workers. Under the Congressional Review Act (“CRA”), 5 U.S.C. §§ 801-08, Congress essentially has 60 days to review and reject any new regulation. By publishing this rule now, the Obama administration may avoid rejection by Congress and the Trump administration under the CRA. Any new rules issued within 60 days of the inauguration, however, may be subject to the CRA’s provisions. 

Overall Outlook 

Much of this year’s presidential campaign rhetoric focused on the Mexican wall, restrictive immigration policies, and the mass incarceration and/or deportation of undocumented aliens in this country. At the present time, however, the budgetary and enforcement capacity constraints appear likely to limit the immediate realization of any such policies. Nevertheless, the campaign has stimulated a national debate on immigration and, thus, has increased the possibility of more comprehensive immigration reform being proposed later in the Trump administration. 

This possibility is underscored by the reality that any uncertainty as to immigration and enforcement may have a serious impact on industries, such as agricultural and hospitality, which traditionally employ undocumented FNs, and on such sectors as technology, financial services, and health care and life sciences, which rely more on documented skilled and highly educated FNs. These industries are (i) important to the national economy, (ii) major employers in many congressional districts, and (iii) likely to beseech elected representatives to solve the immigration “problem.” The harsh truth is that America may not have enough of the necessary and willing workers to fill all the positions that a growing economy demands. In concert, these factors may drive the debate on immigration reform because the United States needs a comprehensive solution to grow the economy as the new administration has promised.

There is significant agreement that the current immigration system is antiquated and needs overhaul. Aside from the enforcement issues, the United States needs an immigration system that facilitates the admission of FNs whose labor and/or skills are critical to economic growth and who will not displace or supplant American workers. The ultimate irony may be that the enormous costs of massive immigration enforcement and the economic consequences to employers of American workers from overly restrictive immigration laws may be the catalyst for meaningful immigration reform.

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