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

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