5 Business Based Immigration Considerations Under President-Elect Trump
While the incoming Trump Administration has not been entirely
clear about how aggressively it will pursue a change of business
immigration, and its primary stated agenda is an enforcement action
against undocumented immigrants, there have been some indications
on what changes to business based immigration to expect under a
Trump Administration.
Focus on Visa Abuse Investigations:
President-elect Trump on Monday, November 21, 2016, released a
short video detailing his immediate plans in office.1 In the video, Trump focused on
directing the Labor Department to investigate visa abuses. This is
consistent with President-Elect Trump’s Position Paper on
Immigration where he details his plans to implement a nationwide
e-verify requirement, create a visa-tracking system, and instill
enhanced penalties for individuals overstaying a visa.2
The Center for Immigration Studies, a non-profit which routinely
presents on immigration before Congress, created a report on
immigration actions the next president could take. The report also
finds that there could be increased site visits and compliance
under the next administration. The report indicates that the next
administration could restore USCIS Fraud Detection and National
Security (FDNS) Division’s analytical program to conduct
regular benefits fraud assessments to determine the fraud rates by
visa category and implement enhanced screening for categories and
types of applicants deemed to be higher risk; direct ICE and USCIS
to coordinate and initiate a program to systematically investigate,
prosecute, or take available civil actions against abuses within
each of the nonimmigrant worker categories, and/ or issue an
executive order directing employers violating immigration or
employment law provisions be barred from using immigration programs
for a period of two to five years, depending on the severity of the
violation.3
President-Elect Cabinet Choices Impact on Immigration:
President-Elect Donald Trump has nominated Republican Senator
Jeff Sessions III to be the next Attorney General. This selection
could impose various impacts on employment-based immigration law.
Throughout his career in the Senate, Senator Sessions has
spearheaded the fight against immigration reform and has encouraged
imposing severe restrictions on visas and expanding immigration
enforcement.4
The Attorney General has a powerful role under the Immigration
and Nationality Act (INA) including managing the nation’s
immigration courts, creating new regulations, controlling U.S.
borders from the entry of illegal immigrants, determining how many
employees USCIS should require, review past administrative
determinations in immigration proceedings (including Board of
Immigration Appeals’ decisions), “delegate such authority
and perform such other acts as [he/she] determines to be necessary
for carrying out this section,” and determining if an actual
or imminent mass influx of aliens presents urgent circumstances
requiring a Federal response to authorizing state or local law
enforcement to perform duties under the INA.5 Even though the Department of
Homeland Security (DHS) administers and enforces the INA, the
Attorney General’s determination and ruling on all questions of
law is controlling.6
Further, Senator Jeff Session’s website states that he was
one of the leading opponents of Senate Bill 744 “Border
Security, Economic Opportunity, and Immigration Modernization
Act” or, more commonly known as the “Gang of Eight”
bill which would increase the number of nonimmigrant workers coming
to the United States. He also says he, “promotes an
immigration policy that prioritizes the jobs, wages, and security
of the American people.”7
In addition to appointing Senator Jeff Sessions to be the next
Attorney General, there have been rumors circulating that Kansas
Secretary of State Kris Kobach may be on the short list to
potentially head the Department of Homeland Security.8 On Sunday, November 20th, Secretary
Kobach revealed his Strategic Plan for his first year in the
Department of Homeland Security, should he be appointed. The plan
included a resurrection of the National Security Entry-Exit
Registration System, or NSEERS, which Secretary Kobach designed and
implemented. According to the Department of Homeland Security,
“NSEERS was first implemented in 2002 as a temporary measure
in the aftermath of the September 11, 2001, terrorist attacks and
was designed to record the arrival, stay, and departure of certain
individuals from countries chosen based on an analysis of possible
national security threats. The NSEERS registration required
approximately 30 minutes in secondary inspection, per person, per
arrival; and NSEERS registrants were also required to register upon
departure at one of the 118 designated ports of departure, limiting
travel flexibility. Since NSEERS was created, DHS has implemented
several automated systems that capture arrival and/or exit
information, making the manual entry of this data via the NSEERS
registration process redundant, inefficient and unnecessary. The
improved and expanded DHS and Department of State systems capture
the same information for visitors, regardless of
nationality.”9 Additionally,
Kobach has represented U.S. citizens, cities, and states in cases
involving illegal immigration, and “led Department of Justice
reforms of the immigration court system, resulting in the reshaping
of the Board of Immigration Appeals in 2002.”10
Potential Changes to the H-1B Visa
There are several changes President-Elect Trump could implement
to the H-1B visa. President Elect Trump’s Position Paper on
immigration states that he plans to increase the prevailing wage
for H-1B specialty occupation visas and require companies hire
American workers prior to hiring foreign nationals if filing an
H-1B. 11 The Center for
Immigration Studies report detailed several actions the next
administration could take with regards to the H-1B visa.12 Some of these actions include
increasing fees employers pay for H-1B visas, increasing the salary
for H-1B workers, deny H-1B visas if the company hiring the worker
laid off citizens or resident aliens, and deny H-1B visas to
employers who violated various employment laws. It is unclear
whether any of these updates will be implemented by the incoming
administration.
Constitutional Limits on Trump Action
While President-Elect Trump has championed immigration
enforcement and changes to the current immigration system as one of
his key talking points in the 2016 election season, he is required
structure our nation’s immigration policy using the regulatory
process, executive actions, policy decisions, and working with
Congress. Even though the Republican party will have majority power
over the executive and legislative branches, there are still
constitutional limits on what the legislative and executive
branches can do monitored by-laws and a court system that sets
boundaries on government actions.13 Further, restrictions on
high-skilled immigration could have a devastating impact on our
country with companies in key sectors of the economy fighting to
find and retain highly skilled workers. Companies will likely speak
out on the negative impacts restricting high-skilled immigration
could have on corporate growth.
President Obama’s Immigration Legacy and Preparing for
President-Elect Trump’s Administration
President Obama is attempting to ensure several of his
immigration initiatives are implemented before Trump takes office
on January 20th. One of those initiatives includes the DHS passage
of Final Rule, “Retention of EB-1, EB-2, and EB-3 Immigrant
Workers and Program Improvements Affecting High-Skilled
Nonimmigrant Workers,” on November 18, 2016 that implements
provisions of The American Competitiveness in the 21St Century Act,
“AC-21” of 2000 and a second federal law, the American
Competitiveness and Workforce Improvement Act of 1998 (ACWIA). This
rule becomes effective on January 17th, 2017.14
If DHS did not publish the final rule, the Trump Administration
could have easily and immediately changed USCIS operating
procedures and adjudications rules affecting H-1B portability and a
broad category of Employment-based I-140 Adjustments. With the
publication of a Final Rule, the incoming Administration would have
to formally rescind this regulation or publish new, superseding
proposed rules if it wishes to substantially change the underlying
policy, opening the action to public scrutiny, Congressional
intercession, and a potential court challenge.
Footnotes
[1] http://www.nytimes.com/2016/11/21/us/politics/donald-trump-presidency.html
[2] https://assets.donaldjtrump.com/Immigration-Reform-Trump.pdf
[3] http://cis.org/A-Pen-and-a-Phone-79-immigration-actions-the-next-president-can-take
[4] http://immigrationimpact.com/2016/11/18/jeff-sessions-immigration-policy/
[5] https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-769.html
[6] https://www.dhs.gov/topic/immigration-enforcement</a>;
http://immigrationimpact.com/2016/11/18/jeff-sessions-immigration-policy
[7] http://www.sessions.senate.gov/public/index.cfm/immigration
[8] http://www.cnn.com/2016/11/21/politics/kris-kobach-donald-trump-department-of-homeland-security/
[9] https://www.dhs.gov/dhs-removes-designated-countries-nseers-registration-may-2011
[10] https://www.sos.ks.gov/about/about_news_biography.html
[11] https://assets.donaldjtrump.com/Immigration-Reform-Trump.pdf
[12] http://cis.org/A-Pen-and-a-Phone-79-immigration-actions-the-next-president-can-take
[13] http://immigrationimpact.com/2016/11/09/donald-trump-immigrant-rights/
[14] https://www.federalregister.gov/documents/2016/11/18/2016-27540/retention-of-eb-1-eb-2-and-eb-3-immigrant-workers-and-program-improvements-affecting-high-skilled
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