U.S. Immigration & The Trump Administration

by Moore & Van Allen PLLC
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With the announcement of President-elect Trump's plan for his first 100 days in office and his selection for Secretary of Department of Homeland Security, it appears the new administration will focus not only on illegal immigration (a hot button topic for the Trump campaign), but also legal business immigration.

It is important to note that the President-elect cannot change the existing immigration laws found in the Immigration and Nationality Act (INA) without Congressional action, however he will have the ability to change certain policies or executive orders without the involvement of Congress.

For example, Trump would not require Congressional action to overturn the Deferred Action for Childhood Arrival (DACA) provision. DACA was implemented by President Obama via executive order, providing temporary employment authorization (EADs) to qualified individuals who were brought to the U.S. as minor children and currently have no legal status. While current DACA registrants may not be affected immediately when the new administration takes office, it is quite possible that the executive order implementing DACA will be terminated and DACA recipients will not have an opportunity to renew their EADs.

IMPACT TO BUSINESS IMMIGRATION

Most of the new administration's announced immigration priorities would require more extensive action as well as time and cooperation between Congress, the new president and the Department of Homeland Security (DHS). While action may not be swift or immediate, Trump has made clear his intention to take action that would potentially impact several nonimmigrant visa categories, including:

TN, E-3, and H-1B1 (Free Trade Agreement Visas)

One of the top priorities President-elect Trump has announced is the intention to renegotiate or withdraw from the North American Free Trade Agreement (NAFTA) and similar trade agreements. Many of these agreements provide specific immigration options for professionals to work in the U.S. under visa classifications such as: TNs (Canadian or Mexican), E-3s (Australian) and H-1B1s (Singaporean or Chilean).

A renegotiation of, or withdrawal from, any of these trade agreements will likely take time, which provides employers the opportunity to consider alternative visa options for workers who may be impacted by changes in these visa programs.

H-1B (Professional/Specialty Occupation Visas)

President-elect Trump has indicated support for highly skilled foreign workers, however he has also indicated that he favors H-1B program reform to "protect American workers" and eliminate "cheap labor." While this language is a bit vague with no specific changes to the H-1B program announced, Trump could potentially require increases in enforcement (such as employer site visits and audits) and more stringent regulations on wages paid to H-1B employees as part of a plan to protect American workers.

The new administration may also pursue, via legislation, building a recruitment process into the existing H-1B regulations and strengthening rules for H-1B-dependent employers (those employing 15 percent or more H-1B visa workers).

STEM Optional Practical Training (OPT ) for F-1 Students

In conjunction with the President-elect's call for immigration reform to protect American workers and ensure open jobs are offered to Americans first, it is possible that the recent extension to the OPT program for STEM (science, technology, engineering and mathematics) disciplines could be repealed or scaled back considerably.

The STEM OPT program fell under intense scrutiny in 2015 when a U.S. District Court invalidated the 17-month STEM OPT extension rule. STEM OPT was revamped in 2016 to offer a 24-month extension, however STEM OPT is still considered by many critics as "a back-door" solution to get around the annual H-1B visa cap and therefore  disadvantages U.S. workers. This could mean further scrutiny of STEM OPT by the new administration. However, one major benefit to STEM OPT is that it requires employers seeking to hire these foreign workers to participate in E-Verify, the federal system that tracks employment authorization and eligibility. President-elect Trump and many of his immigration advisors are strong proponents of E-Verify and support the expansion of E-Verify to all employers.

Overall, U.S. employers will most likely experience increased worksite enforcement and potentially a mandatory E-Verify program from the new administration.

Visa applicants may also be subject to longer waits for visa issuance due to the new administration's focus on more stringent vetting of foreign nationals seeking to enter on either temporary work or student visas, or those seeking green cards. Furthermore, entries into and exits from the U.S. could be impacted by the implementation of  a fully operational Biometric Entry-Exit Visa Tracking System, another top priority on the President-elect's plan for his first 100 days in office.

NEW DHS LEADERSHIP

On December 12th, the President-elect announced his intention to nominate retired Marine General John Kelly to lead DHS. Kelly oversaw U.S. military operations in Central and South America and the Caribbean as commander of U.S. Southern Command.

Based on Kelly's background in fighting drug and human trafficking and terrorism as well as his work to safeguard the southern border, it is anticipated he will be at the forefront of Trump's efforts to build a wall on the southern border and keep illegal immigration to a minimum by immediately removing those who enter illegally or detaining them until removed. In addition, Kelly would play a major role in Trump's efforts to suspend the issuance of visas from countries where he believes the screening processes are insufficient and implement expanded vetting mechanisms, particularly for individuals from countries identified as state-sponsors of terrorism.

NEXT STEPS

For employers, it is possible to prepare now for potential increases in worksite enforcement and/or changes to certain visa programs. A few basic recommendations:

  • Establish an internal procedure for potential H-1B and L-1 site visits and effectively communicate that procedure to HR and Legal staff as well as H-1B and L-1 workers.
  • Review your existing I-9 and E-Verify compliance programs, or implement I-9 and visa-related compliance initiatives.
  • Communicate effectively with business visitors coming to the U.S. for meetings and training and prepare them for entry to the U.S. no matter how brief the visit may be.

For foreign employees, be aware of your status and the expiration dates of your passport and all U.S. status documents, and be vigilant of changes by taking the following actions:

  • Plan for extended visa processing times at U.S. Consulates and apply as early as possible.
  • Communicate to your employer any concerns you have regarding the maintenance of your work status.
  • Don't forget to include your dependents (spouse or children under 21) when reviewing your U.S. immigration options and/or potential changes to your status.

While it is impossible to know what exact changes may come with the new administration, President-elect Trump's positions do reveal his vision regarding immigration and the likely impact to U.S. employers and foreign national employees.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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