United States: Business Immigration Under President-Elect Trump

Last Updated: December 8 2016
Article by Marcela B. Stras and Elena Park

With one of the most divisive presidential elections in U.S. history behind us, the question remains: How will the election of Donald Trump affect business immigration? Many people were concerned by his rhetoric during the election about illegal immigrants and building a wall between the United States and Mexico. However, what most companies do not know is that he also appears to be taking a direct aim at legal work visas.

The appointment of Senator Jeff Sessions (R-Alabama) as Attorney General raises a "red flag" on the business immigration front, because for years Senator Sessions has urged severe restrictions on visas, called for drastically expanded immigration enforcement, and blocked all practical reforms to our outdated immigration system. As the country's top lawyer and highest-ranking law enforcement official tasked with administering justice, the Attorney General has substantial authority over our nation's laws, including our immigration laws. Senator Sessions is a long-time critic of the H-1B visa worker program, and it is likely that Congress will confirm his appointment to the post.

Annually, 65,000 foreign professional workers and 20,000 graduate students from U.S. universities are admitted into the country under the H-1B program. President-elect Trump sent mixed messages on the campaign trail, sometimes criticizing the visas but other times calling them an important way to retain foreign talent. It is probable that President-elect Trump's own companies employ H-1B workers, as do most U.S. companies when possible. The H-1B program has been over-subscribed for years, meaning there is a much greater demand than the quota provides. In 2016, less than 30 percent of the timely applicants were able to get the visa.

Senator Sessions is well known for being a hard-liner on immigration. Last year, he released a memo titled, "Immigration Handbook for the New Republican Majority" that lays out his views on why immigration reform has worked against American citizens and states that American immigration laws should "serve the just interests of the country and its citizens." The memo describes skilled immigrant workers in Silicon Valley as a "hoax" and speaks very critically of the H-1B and L-1 (intra-company transfer) visa programs.

Other changes that are likely to happen under President-elect Trump:

  • A suspension of all visas for nationals of Muslim regions (to be determined), and potentially extra scrutiny of visa applications for anyone who is a Muslim.
  • Increasing the use of the E-Verify program. This program is now required for all government contractors, although many companies use it voluntarily. It is an on-line program that verifies employment authorization before a worker is employed.
  • Building a wall with Mexico was a main topic in President-elect Trump's election rhetoric, however the Republican Congress has signaled that it is more interested in stricter enforcement along the border, by hiring more border and ICE agents.
  • Renegotiating the North American Free Trade Agreement (NAFTA), which contains the TN work visa for Canadian and Mexican workers. We do not know what will happen to this visa at this time, and it is true that the 20-year-old list of professions needs to be updated, but this is an important visa for U.S. companies.
  • The EB-5 Regional Center Program is set to end on December 9, 2016, but is likely to be extended into spring of 2017. The EB-5 Coalition is currently drafting revised EB-5 legislation that will be presented to Congress in 2017.

Lastly, we expect increased requirements to get the H-1B and L work visas. President-elect Trump has mentioned increasing wage requirements (there are already wage requirements in place through the Department of Labor, and we expect the wages to be increased) and possibly mandating a labor market test before filing the H-1B or L petition. It is unlikely that this can all be accomplished before the next H-1B quota filing the first week of April 2017, but we expect movement on these issues sometime in 2017. It is also unlikely that the Republican Congress, with its pro-business policies, would allow either work visa to be completely eliminated. However, it is doubtful that Congress will block efforts to making the visas harder to get. The issue of increasing the H-1B quota is also dead in the new administration.

We do expect changes to business immigration to happen in 2017, and the changes will probably happen quickly. We advise clients to plan ahead and file immediately for the work visas they need. It is going to be a bumpy ride, but we stand ready to help and advise clients as needed.

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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