United States: 5 Business Based Immigration Considerations Under President-Elect Trump

Last Updated: November 24 2016
Article by Melissa B. Winkler

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; 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

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Melissa B. Winkler
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.