What Employers Can Expect from the Trump Administration: Immigration

by Franczek Radelet P.C.
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Franczek Radelet P.C.

Our alert on Monday (11/14/16) provided a brief summary of immigration-specific changes that are likely under Donald Trump’s new administration. This alert provides greater detail on the immigration policies that Candidate Trump supported and the changes that he is likely to enact as President. President-elect Trump has already announced plans for the first 100 days of his presidency, and released an immigration plan. The categories of changes that Trump’s administration could enact can be broadly categorized as legislative, regulatory, and executive actions. The likelihood and pace of change will depend, to some degree, on the means of the changes that a President Trump seeks to pursue.

Repealing DACA: Among the first steps that President Trump could take is the elimination of the DACA (Deferred Action for Childhood Arrivals) program that President Barack Obama created through executive order in 2012. This program has provided work authorization to approximately 750,000 individuals who entered the United States as youths and met certain public safety and national security requirements. It was unaffected by the lawsuit over President Obama’s expansion of these programs in 2015 and 2016. As a presidential candidate, Trump stated that he will eliminate the DACA program, but it is unclear whether he would actually fulfill this promise or enact a more limited restriction on the DACA program. Since this program was enacted through executive order, it is likely to be one of the first changes that President Trump would enact.

Notwithstanding the possibility of change to this program, it is critical that employers avoid making any adverse employment decisions about an employee or prospective hire based upon the potential elimination of the DACA program. Under current federal law, such actions could be considered unlawful and could expose the employer to legal liability.  

E-Verify: During his campaign, Trump emphasized mandatory E-Verify as a solution to the problem of illegal immigration and employment of unauthorized workers by U.S. employers. In the past, unsuccessful attempts to introduce mandatory E-Verify have been made through legislation, since E-Verify is a voluntary program. Thus, implementing legislation would likely be necessary to enact mandatory E-Verify.

Workplace Enforcement and Raids: Candidate Trump promised an increased emphasis on workplace enforcement and I-9 audits and appears likely to return to the practice of detaining unauthorized workers caught in raids. Under the Obama administration, workplace enforcement increasingly responded to limited resources by focusing on “critical infrastructure” and ended the practice of detaining alleged unauthorized workers unless those individuals had a criminal record or were otherwise a removal priority. Employers should prepare for increased workplace enforcement under the Trump administration and the possibility of “SWAT-style” raids. Such changes would reflect new administrative policy and would not require legislative change.

Business Visa Changes: Many changes to the H-1B visa program would require legislation. For example, the annual cap of 85,000 H-1B visas (including 20,000 visas for U.S. advanced or Masters Degree holders) is fixed in the Immigration and Nationality Act, as is the process for obtaining an H-1B. However, changes to the prevailing wage guidelines that would fulfill Candidate Trump’s promise to increase prevailing wages could be enacted through Department of Labor regulation.

Additionally, over the last 2 years, the Obama administration has enacted modest and limited reforms of business immigration. These reforms have included changes to the Visa Bulletin, employment authorization for certain H-4s, the new 2-year STEM OPT program, and a proposed parole program for start-up entrepreneurs. While Candidate Trump did not focus on these changes, there is speculation over their future because of the association of some vocal critics of many of these immigration benefits. It should be noted that many of these changes were enacted through agency rulemaking, and changes would take some time due to the notice and comment requirements associated with federal regulations.

Extreme vetting of certain immigrants: Candidate Trump initially stated that he would block Muslims from entering the United States before his position evolved to “extreme vetting” of immigrants from certain countries. This could be enacted in a variety of different ways, including but not limited to registration requirements (similar to the NSEERS program that George W. Bush’s administration adopted) and increased background checks that would be enacted through a combination of regulatory and legislative changes.

Border Security and Undocumented Immigrants: Candidate Trump focused his most explosive and extreme rhetoric on the undocumented and border security, promising to build a wall on the southern border with Mexico and to “make” Mexico pay for it. In the 100-day action plan he released after his election titled his “Contract with the American Voter,” President-elect Trump promises to enact punitive measures such as defunding sanctuary cities and discontinuing visa issuance in response to countries’ refusal to accept U.S. deportees. The plan also includes the promise to introduce a legislative measure targeting illegal immigration called the “End Illegal Immigration Act.” The Act would include funding and plans for construction of the border wall; creation of mandatory federal prison sentences for those who unlawfully re-enter the U.S. after deportation, felony convictions, or multiple misdemeanor convictions; and increased penalties for visa overstays, with the stated intention of protecting job opportunities for U.S. workers. Although information is limited at this time, Trump’s campaign has announced as immediate priorities the detention and deportation of unlawfully present individuals with criminal convictions.

What to Expect Next: The President’s ability to impact immigration policy will be more quickly and sharply felt where he can use executive authority. There will be changes in personnel and the policies of immigration agencies, prioritization of enforcement efforts, and use of executive actions. He will have the ability to deny immigration benefits not codified in laws and to shift enforcement priorities. Regulatory changes will take more time, and legislation will be required to change treaties providing immigration benefits and to fund his border security projects. In light of strong partisanship and opposition to President Elect Trump’s policies, it is also very likely that Trump’s administration’s immigration policies will also be characterized by litigation seeking to block their enactment. As with many other areas of the President-elect’s agenda, employers and individuals will need to follow a “wait and see” approach on immigration.

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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