United States: Seyfarth's Analysis Of The Short-Term Impact Of The Election On Business And Employment-Based Immigration

Seyfarth Synopsis: The Trump Administration will have the power to make significant changes to the business immigration landscape. Here is what we can expect.

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The unforeseen victory of Donald Trump and the continued GOP control of both houses have caught many by surprise. Since control of illegal immigration served as a foundation stone of the incoming president's campaign, many now wonder or worry about the future of U.S. employment-based immigration policy and procedure in a Trump Administration.

While no one has a crystal ball to address these concerns, the lawyers in Seyfarth Shaw's Business Immigration Group offer the following analysis based on their decades of practicing immigration law under several past presidents.

What Immigration Programs, Policies and Procedures Will Not Change Easily or Quickly

Here is what Seyfarth's immigration attorneys foresee:

No immediate change to the immigration laws. The Trump Administration and members of the Republican-controlled Congress who take office in January must operate within our constitutional system and the rule of law. For our purposes, this means new laws cannot be quickly enacted. Hence, the Immigration and Nationality Act (INA)- which established the alphabet soup of visas for immigrants and nonimmigrants, will remain in place for the time being. Unless and until Congress amends the INA and President Trump signs any amendment, nothing in this statute will change.

Moreover, Senate Democrats will likely filibuster proposed immigration changes that they believe are ill-considered, harmful or unhelpful in advancing our country's tradition as a nation of immigrants. There is even the remote possibility that Senate Democrats may collaborate with the party in power to reflect the will of more than 70% of the American public to enact comprehensive immigration reforms. Any meaningful reform would necessarily reflect our nation's interest in encouraging the passage of laws to spur innovation, job creation, and an enhanced ability of U.S. businesses to compete in the global economy.

No immediate change to the federal judiciary. Although the composition of the Supreme Court will likely reflect Republican views once a justice is chosen to replace the late Antonin Scalia, the federal judiciary -- comprised of district and circuit court judges with lifetime appointments by past Democratic and Republican presidents -- remains in place as a buffer against unlawful legislative or regulatory actions. Moreover, the Supreme Court in the past has surprised many observers by issuing immigration-related decisions that acted as a check on immigration-agency regulations and state laws, and confirmed basic due process rights of immigrants. In short, it will take time before adverse court rulings will drastically change existing judicial interpretations of the INA and the Administrative Procedure Act.

What Immigration Programs, Policies and Procedures Can Be Changed Quickly?

The Constitution and Congress provides President-elect Trump with the power to effectuate wholesale immigration changes quickly in certain contexts. Candidate Trump declared that he would immediately reverse all of President Obama's executive actions on immigration, For a recap, see, Seyfarth Client Alert, " The Top 10 Things U.S. Employers Need to Know about President Obama's Executive Actions on Immigration," November 21, 2014. It is possible that such reversals, although unlikely in the short-term, would include the regulatory changes made by President Obama's administration, including those relating to business immigration such as the USCIS final rule allowing certain F-1 students with STEM degrees to apply for a 24-month extension of their post-completion optional practical training and the H-4 EAD rule allowing certain H-4 dependent spouses to file for employment authorization. The elimination of F-1 STEM employment authorization program does not appear to be in immediate danger. The fact that this program requires employers to participate in E-Verify (an internet-based system that allows businesses to determine the eligibility of their employees to work in the U.S.) rather than leaving it optional should remove it from the target list, at least initially.

Here are the most likely actions that we believe President Trump could take:

Elimination of the DACA and DAPA programs. Candidate Trump has vowed that very soon upon arrival in the Oval Office he would end the Deferred Action for Childhood Arrivals (DACA) program, an Obama executive action taken in 2012 that allowed a class of foreign nationals who came to the U.S. as children to receive deferred action against enforcement, employment authorization and advance parole travel authorization. As of December 31, 2015, U.S. Citizenship and Immigration Services (USCIS) issued 638,897 initial DACA approvals and 148,171 renewals. Presumably, DACA beneficiaries have received a like number of Employment Authorization Documents (EADs). As a result, a significant segment of DACA beneficiaries have become lawfully employed in the United States, and their employers probably have an interest in avoiding the loss of valued employment.

It is unclear, however, whether President Trump's elimination of DACA will be effective only on a going-forward basis, or whether the program's termination will also include the immediate revocation of existing DACA-based EADs. There is precedent where the USCIS requested EAD cards to be returned to the government and rendered them invalid.

U.S. employers of DACA beneficiaries must therefore monitor developments and consult with immigration legal counsel to determine whether these employees may remain lawfully employed or be terminated on or before a publicly announced date. Practically speaking, in order to avoid additional burden on USCIS, a DACA-elimination executive order could provide that unexpired grants of employment authorization to DACA beneficiaries will only expire on the date noted on the EAD.

Thus, Employers should consider joining in the foreseeable efforts of immigration advocacy groups to urge the Trump Administration—as a matter of prioritizing immigration enforcement measures—to refrain from eliminating DACA (whose beneficiaries have already been screened for past criminal conduct) or doing so only prospectively.

Suspension or revocation of proposed or recently finalized immigration regulations. In addition to the roll back of executive actions and orders, President Trump could easily stop current immigration rulemaking activity. Regarding proposed immigration regulations, the president could merely instruct departments to cease or suspend all rulemaking activity. Thus, several recent proposed rules may be stopped. These proposed rules might include:

  • The USCIS proposed rule on International Entrepreneurs, offering parole entry and employment authorization for certain founders of start-up entities supported by venture capital funding;

  • The Department of Labor proposed regulation seeking to modernize the Labor Certification (PERM) system which has not yet been published but currently sits with the Office of Management and Budget for initial review. These regulations were reportedly intended to update antiquated PERM advertising requirements and provide a mechanism for correcting harmless errors on pending applications;
  • The USCIS proposed rule on "Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting Highly-Skilled Nonimmigrant Workers," formalizing policies adopted as a result of the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) and the American Competitiveness in the Twentyfirst Century Act of 2000 (AC21), as well as a variety of employment-based immigration changes discussed generally in the U.S. Chamber of Commerce's formal comment to the proposed rule (i.e. H-1B portability, Adjustment portability, H-1B extensions beyond six years);
  • The U.S. Customs & Border Protection proposed rule authorizing the CBP to waive passport and visa requirements for nonimmigrant applicants for admission to the U.S. due to an unforeseen emergency, as well as a corresponding U.S. Department of State proposal;
  • The USCIS proposed rule, "Expansion of Provisional Unlawful Presence Waivers of Inadmissibility," which allows stateside processing of unlawful-presence waivers to be granted to an expanded class of relatives of citizens and lawful permanent residents, thereby minimizing the risk that an individual pursuing an immigrant visa abroad would be barred from reentry under the three- or ten-year bars; and
  • The U.S. Department of Justice proposed regulation, "Standards and Procedures for the Enforcement of the Immigration and Nationality Act," relating to citizenship status and national origin discrimination under INA § 274B.

In addition, certain recently finalized immigration rules promulgated in the final months of the Obama Administration, known as "midnight regulations," could be rescinded by the GOP-controlled Congress—at the bidding of the Trump Administration. This has occurred before when President George W. Bush was able to nullify a workplace ergonomics regulation issued in the final months of the Bill Clinton Administration. Even if this route were not pursued, the Trump Administration could initiate steps to withdraw certain Obama Administration regulations. Here are some of the final rules that could be revoked (perhaps to eliminate them or to allow for their replacement with tougher or more costly or burdensome immigration regulations):

Increase in Worksite Enforcement, Mandatory E-Verify and Visa Compliance.

During the campaign President-elect Trump promised his supporters his administration would have zero tolerance for criminal aliens and the end of the catch and release of foreign individuals illegally present in the United States. He also stated he planned to request Congress to pass several laws targeting those entering the U.S. illegally and enhancing state and local cooperation with federal authorities. While these steps may not directly affect companies, there will likely be fall out in the form of increased investigations of employers, while pursuing targeted individuals. It is possible these visits could trigger tangential worksite initiatives by U.S. Immigration and Customs Enforcement.

Since 2012 employers have enjoyed a respite from "raids" and worksite enforcement actions. The programs that flourished under the Bush administration, however, could be resurrected with increased onsite inspections of Forms I-9 (Employment Eligibility Verifications). Candidate Trump's campaign statements promising to deport millions serves as a reminder about the importance of proactive compliance planning. Accordingly, employers should tighten their compliance efforts. In particular, employers who have not yet instituted Form I-9 and visa-related compliance initiatives should focus efforts on a comprehensive review of their records, policies and protocols under the guidance of immigration counsel.

President-elect Trump has mentioned his support of making E-Verify mandatory nationwide. Depending upon the particulars of such a sweeping mandate, including whether or not current workers would need to be screened through E-Verify, certain U.S. businesses could find themselves in precarious positions. Accordingly, to reduce the potentially adverse impact, employers should consider conducting voluntary immigration compliance audits now, assessing potential liabilities, engaging I-9 remediation efforts, and implementing a potential E-Verify roll -out plan of action.

Finally, President-elect Trump will likely spread around the focus on immigration enforcement and tie this into his quest to protect U.S. workers. Reforms of the H-1B and L-1 visa programs have been part of the bipartisan agenda in years past and may become a priority for the new administration. This, combined with Candidate Trump's discussion of "extreme vetting" of potential immigrants, may have a chilling effect on overall immigration. Here again, it will be critical for employers to consider joining in the policy conversation to ensure the U.S. retains access to the best and brightest in a world where everyone is competing for global talent.

The reinstatement of the "Culture of No" on Steroids.

On March 22, 2002, James W. Ziglar, the Commissioner procedure for the legacy agency Immigration and Naturalization Service (INS) issued a policy known as "zero tolerance memorandum," announcing that any immigration official who fails to abide by policies and procedures adopted by the INS headquarters office "will be disciplined appropriately."

Although USCIS revoked the policy at an internal Town Hall on September 8, 2003, its adverse consequences have lingered. In the ensuing years, the zero tolerance policy memorandum has been replaced by a "culture of no." The culture's foundation appears to be the conclusion of immigration officials, particularly at USCIS's Regional Service Centers, that no officer will ever be disciplined or impeded in career progression by saying, "no," to any petition or application for immigration benefits, whereas a "yes" answer could well result in the officer's subpoenaed appearance at a congressional hearing, if the officer's approval of an immigration benefit request unwittingly allowed a terrorist to slip into the United States. The culture of no has resulted in the ever-increasing issuance by USCIS of burdensome and expensive requests for additional evidence and notices of intention to deny or to revoke approval of employment-based immigration petitions and applications, as well as the publication of policy memorandums and regulations that insist on ever-higher evidentiary burdens imposed on employers.

If the Trump Administration were to move forward with comprehensive Draconian changes in immigration policies, the culture of no could be given enhanced recognition and application upon the appointment of a new USCIS Director who, after Congressional confirmation, could easily instruct immigration officials (including adjudicators and officers of the USCIS Fraud and National Security Directorate who perform worksite visits) to apply, effective immediately, heightened skepticism and scrutiny in adjudication of benefits requests and in the conduct of post-approval site visits.

Since USCIS has historically issued far more policy memorandums than final regulations, nothing would prevent the incoming Director from rescinding a host of INS and USCIS employer-friendly agency policies and procedures, and promulgating new policy guidance mandating substantially greater strictness and the issuance of more frequent and burdensome demands for additional evidence. Examples of enlightened policies that could readily be revoked would include policy memorandums encouraging immigration officers to refrain from issuing multiple requests for evidence in the same case or reversing employment-based status grants by claiming in renewal petitions and applications that the prior adjudicator committed clear error.

In addition to quickly implementing DHS changes in immigration policies and procedures that the new Trump Administration could adopt, President Trump could bring about the easy withdrawal of existing precedent decisions issued by the USCIS Administrative Appeals Office and the Board of Immigration Appeals, and their replacement by rulings that emphasize immigration enforcement and ineligibility for benefits rather than leniency. Since the INA gives the Attorney General the sole power to make rulings on all immigration-related questions of law, a new AG appointed by President Trump could fundamentally alter the administration and enforcement of the immigration laws in ways that employers and their noncitizen workers would find wholly unwelcome and intolerable.

The election of Donald Trump to the presidency and the GOP's continued control of the Legislative Branch did not rescind the fundamental market need of U.S. employers to hire foreign workers or the desire of noncitizens to enter and work in the United States. None of the foregoing "parade of horribles" is necessarily inevitable. Only advocacy and constituent pressure on the new administration and the Congress can slow down or prevent the introduction of quickly implemented Draconian reforms of the current employment-based immigration system.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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