What will U.S. Business Immigration Look Like Under A Trump Administration?

by Carlton Fields

Carlton Fields

More than 10 days have passed since the election results were revealed, and the United States now has a businessman as its president-elect ready to take office on January 20, 2017. However, despite his business background, it appears that the Trump administration will be equally hard on legal business immigration as on illegal immigration. President-elect Trump’s campaign speeches and his position paper on immigration shed light on how his vision regarding immigration will impact employers with a foreign national workforce. Below are some of the pertinent temporary work visas, inspections procedures and immigration control practices that may be impacted when the Trump administration is in place, as well as a brief discussion about the longer delays expected for foreign workers traveling to the United States for short-term business reasons or to work and study.

F-1 Students and Optional Practical Training (OPT )

President-elect Trump has called for more stringent vetting of foreign nationals seeking to enter on either temporary work or student visas, or those seeking green cards. In addition, he wants to suspend the issuance of visas from countries where there is no screening process until proven and effective vetting mechanisms are implemented, particularly from regions that export terrorism. Given this possible delay or suspension, it is key for foreigners seeking to work or study in the United States to apply for the F-1 student visa before the new administration is in place. Further, there is a strong possibility that the generous regulations extending OPT to students in the STEM (science, technology, engineering and mathematics) disciplines be repealed or scaled back considerably. This is due to the Trump administration’s call for new immigration controls that would boost wages and ensure open jobs are offered to Americans first. The STEM OPT program requires employers to participate in E-Verify, an internet-based system that compares information from an employee's Form I-9 (Employment Eligibility Verification) to data from the U.S. Department of Homeland Security and Social Security Administration to confirm employment eligibility. President-elect Trump and his key immigration team advisors are proponents of E-Verify and support the program’s expansion to all employers. As such, STEM OPT may remain in effect for some time.

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

President-elect Trump has indicated he would seek to renegotiate or withdraw from the North American Free Trade Agreement (NAFTA) and similar trade agreements, many of which include streamlined immigration provisions allowing professionals to work in the United States under visa classifications defined in the agreements. Employers should review their foreign workforce and gather requisite data to possibly convert TNs (Canadian or Mexican), E-3s (Australian) and H-1B1s (Singaporean or Chilean) to either an H-1B visa or commence the permanent residence (green card) process. It is unlikely that the renegotiation of, or withdrawal from, any of the trade agreements will occur immediately after President-elect Trump assumes office. Employers will have time to review their workforce, consult with their immigration lawyers, and take necessary action to maintain their foreign workforce with little to no impact on the business.

H-1B Specialty Occupation Visas

President-elect Trump supports immigrants who are skilled, have merit and will succeed in the United States, and would favor reform of the H-1B program to eliminate “cheap labor.” He may seek, through legislation, a more active recruitment process built into the existing H-1B regulations. He may pursue changing rules on H-1B-dependent employers (those employing 15 percent or more H-1B visa workers) and impose more stringent regulations on wages and salaries paid to H-1B employees, possibly increasing them to as much as $100,000. As part of his vision to protect the American worker, President-elect Trump may also conduct more audits of H-1B employers. Increases in enforcement and H-1B salaries may encourage employers to ship offshore the IT and engineering work currently performed under H-1Bs, which would be counter-productive. H-1B visa reform will, in all likelihood, make certain IT projects too expensive to remain in the United States. If there are no U.S. workers available to handle the projects, the work may be outsourced overseas, or the industry may be forced to automate, as the auto industry did. This is an excellent time for employers to review their H-1B and public access files and ensure all is in order, as more audits of H-1B employers are anticipated.

Deferred Action on Childhood Arrival (DACA)

While the 725,000 or so DACA registrants in the United States may not be affected immediately when President-elect Trump takes office, it seems certain that the executive order implementing DACA will be terminated, and those with employment authorization document (EAD) cards will not have an opportunity to renew their work permits, which would impact employers. It is a good time for employers to review their foreign workforce and I-9 records to review who has time-limited EAD cards, and be prepared for the possibility that some EAD cards will not be renewed if DACA is terminated. Revocation of this program will likely take some time, but preparation is key to minimizing the disruption of the employer’s workflow.

Travel to the United States: A Fully Operational Biometric Entry-Exit Visa Tracking System

The Trump administration will implement a biometric entry and exit system at all land, air and sea ports. This system is No. eight on the president-elect’s 10-Point Plan to Put America First. Statistics show that approximately half of the new illegal immigrants enter the United States on a valid visa and then overstay. President-elect Trump plans to combat that practice by strictly enforcing visa expiration dates. It remains to be seen how this priority will be implemented (by legislation or regulation), but strict oversight on visa expirations are anticipated, given the advisors President-elect Trump has enlisted to develop his administration’s immigration policy.

Increased Worksite Enforcement, Mandatory E-Verify and Visa Compliance

President-elect Trump has clearly stated that his top priority is 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. He wants to end the existing “catch and release” program in existence today. Such enforcement-centric policies may result in tangential worksite initiatives by the U.S. Immigration and Customs (ICE) resulting in increased onsite inspections of I-9 forms. President-elect Trump’s promise to deport millions suggests that employers should be proactive and review existing I-9 and E-Verify compliance programs, or implement I-9 and visa-related compliance initiatives, to ensure they are ready for any possible ICE investigations or audits. Further, it is likely that mandatory E-Verify participation by all employers will be proposed. Employers should consider conducting voluntary internal audits now to limit or eliminate potential fines in the event of an ICE investigation or audit.

It is important to note that the president-elect cannot change the existing immigration laws found in the Immigration and Nationality Act (INA) unless Congress amends the INA, and President-elect Trump signs it. This will take a considerable amount of time and cooperation between Congress and the president. He can, however, change policies or executive orders, such as the DACA program, without the involvement of Congress.

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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