PRESIDENT-ELECT TRUMP AND IMMIGRATION: INITIAL THOUGHTS ABOUT IMMIGRATION-RELATED CHANGES.
Immigrant communities fear the ascending of Donald Trump to the presidency. Rumors about building a wall, stopping the outflow of immigrant’s money from the US to their families in central America, and the possible revocation of Deferred Action for Childhood Arrivals have created scaremongering and speculations. During the election campaign, President-elect Trump put immigration at the center of his agenda and platform and made a commitment to the voters to take immediate steps relating to immigration upon taking office on January 20, 2017. There are certain immigration-related steps that can be done immediately upon taking office, by executive action, and there are certain steps, which require congressional approval. The experienced immigration attorneys at Immigration Solutions LLC seek to provide our initial thoughts on what immigration-related changes we may expect during the Trump presidency.
Building a Wall and Deporting Illegal Immigrants
The goal of the Trump administration is to curb illegal immigration and secure the US borders. Trump wants to sharply curtail the flow of illegal immigration by promising to build a wall on America’s southern border and tripling the US’s existing “deportation force.” In terms of deporting illegal immigrants, Trump would prioritize individuals with criminal records and plans to immediately deport 2 to 3 million undocumented immigrants. In some ways, Trump’s proposal follows the Obama administration’s deportation efforts, which caused 2.4 million foreign nationals to be removed between fiscal years 2009 and 2014. This is the highest number of deportations a President brought about. Trump means to end “catch and release” policy, which means that anyone caught crossing the border illegally will be detained and subsequently deported. President Obama has been meaning to also terminate the “catch and release” policy, therefore, this action is not surprising.
Ending Sanctuary Cities
Trump plans to defund and end “sanctuary cities” and encourage the cooperation between local law enforcement and federal authorities. Trump would use the federal government to discourage cities from enacting policies that protect undocumented immigrants and instead, force local law enforcement officers to cooperate and alert federal authorities of criminal foreign nationals that are in the US undocumented. The federal government will cease to provide protection and any financial aid to cities that refuse to cooperate. This shift in policy will likely cause a conundrum for local police authorities that rely upon the immigrant community’s information to stop criminal activities in their communities. Therefore, this issue remains to be determined.
Making It Difficult to Remain in the US Undocumented
The Trump administration would make it harder, if not impossible, for undocumented immigrants to live and work in the US by enhancing the E-Verify system and pushing all US employers to check the legal status of their employees. Trump also plans to have Immigration Customs Enforcement to conduct more raids on factories and construction sites. This may cause about 8 million of unauthorized workers to be out of jobs causing millions of families to be without income and unable to support themselves.
Unlawful Immigrant Community
The sheer volume makes it unlikely (and somewhat impossible) that all of the unlawful immigrants in the United States will be removed. However, the President has power to set deportation priorities and it is feasible that there may be increased enforcement and removal actions focused on unlawful immigrants who have committed certain crimes or otherwise meet priority criteria. The current Obama administration uses such criteria so our expectation is that there may be some continuation or refining of these criteria.
Deferred Action for Childhood Arrivals (DACA)/Deferred Action for Parents of Americans (DAPA)
As part of his immigration platform, President-elect Donald Trump pledged to end the Deferred Action for Childhood Arrivals (DACA) initiative, which was announced on June 15, 2012 by DHS Secretary Janet Napolitano. Though statements on Trump’s campaign website clearly indicate an intention to end DACA, much remains to be seen. We do not know how or when DACA might end. It is possible that USCIS could stop accepting or approving all DACA applications. Alternatively, USCIS could halt only certain components of DACA. For example it could stop accepting initial DACA applications, stop accepting or approving renewal applications, or revoke DACA for individuals who currently have it. If the new Administration were to revoke DACA, the individual’s employment authorization would also be revoked.
Trump could take action on DACA immediately or soon after the inauguration, weeks or months later, or not at all if he softens or changes his views. As of June 30, 2016, USCIS has approved close to 750,000 DACA applications and more than 525,000 DACA renewals since the agency began accepting DACA applications in 2012. The political power of the DACA population and immigration advocates should not be underestimated, and the Trump Administration will likely balance the above options against the political repercussions it would face by targeting a compelling population that generates sympathy with the public. Moreover, during the past several years 75 percent of Americans have supported a legalization plan for the undocumented that includes permanent legal status.
Given the uncertainty surrounding the DACA initiative, AILA members will undoubtedly get questions from clients who want to know whether they should file for initial DACA, renew their current DACA, or travel on advance parole. Ultimately, this decision will depend on the individual facts and circumstances that are unique to each case, and should be made only after a thorough and candid discussion with your client, which includes a full analysis of possible eligibility for other immigration benefits. However, in assessing the pros and cons, and risks and rewards, members are advised to take into consideration the following:
Risk of Enforcement Action
Because DACA was created through executive action in the form of a policy memorandum, there are no statutory or regulatory confidentiality provisions that completely protect the information applicants provided to DHS from being used for enforcement purposes. According to DACA FAQ #19:
Will the information I share in my request for consideration of DACA be used for immigration enforcement purposes?
Information provided in [a] request is protected from disclosure to ICE and CBP for the purpose of immigration enforcement proceedings unless the requestor meets the criteria for the issuance of a Notice to Appear or a referral to ICE under the criteria set forth in USCIS’s Notice to Appear guidance (www.uscis.gov/NTA). Individuals whose cases are deferred pursuant to DACA will not be referred to ICE. The information may be shared with national security and law enforcement agencies, including ICE and CBP, for purposes other than removal, including for assistance in the consideration of DACA, to identify or prevent fraudulent claims, for national security purposes, or for the investigation or prosecution of a criminal offense. The above information sharing policy covers family members and guardians, in addition to the requestor. This policy, which may be modified, superseded, or rescinded at any time without notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable by law by any party in any administrative, civil, or criminal matter.
Thus, information provided in a DACA application may be shared with ICE and CBP for immigration enforcement purposes only if the requestor meets the criteria for NTA issuance, but information may be shared with other law enforcement agencies (including ICE and CBP) for purposes other than removal. “Other purposes” may include identifying and preventing fraud, national security concerns, and the investigation or prosecution of criminal offenses. However, because the FAQ “may be modified, superseded, or rescinded at any time without notice,” individuals may not be able to rely on it to protect them from enforcement actions in either the immediate or long-term future.
What we do know is that information pertaining to individuals who have been granted DACA is already known to the government. Therefore, it does not appear that individuals seeking to renew their DACA benefits would incur additional risks by submitting a renewal application. On the other hand, the submission of a new initial application at this time would require the individual to disclose their personal information to DHS and could increase their exposure to any potential enforcement actions the new administration decides to take.
NAFTA and TN Visas
Scrapping the NAFTA treaty has been a frequent campaign topic. The TN visa for Canadian and Mexican citizens was created as part of the NAFTA treaty and if NAFTA trade agreement between the US, Canada and Mexico is scrapped, it is likely that the TN visa may cease to exist. At this time, we do not have a timeframe for any such action, but we urge TN workers to keep an eye on developments and possibly evaluate alternatives and other visa options.
F-1 STEM OPT Rule
Another recent rule that expanded the availability (and duration) of work authorization for foreign nationals is the F-1 STEM OPT extension rule. The new rule that allowed F-1 foreign students to obtain an additional two years of work authorization is also a possible target of the Trump administration. The rule was created as part of a rulemaking process so it can be reversed (or replaced) within months.
DISFAVORING H-IB VISAS
The H-1B work visa program has been mentioned during the election campaign but we do not know the exact direction a Trump administration may take.
During his campaign Trump indicated that he would put an end to the H-1B Work Visas for Professionals. This is because he erroneously believes that foreign workers are taking jobs away from poor and working class Americans. Trump wants to raise the prevailing wage for H-1B visas to force American companies to give entry-level jobs to US workers. Trump did not consider that the current prevailing wages already pose a strong barrier. He talked about adding a recruitment requirement to find American workers before hiring foreign ones. It is important to note that the law already poses recruitment requirement for all Employment based Green Card applications. In the same breath Trump declared that he supports visas for bringing in talent from out of the country as long as the program complies with US laws. We wonder whether Trump realizes that the current H-1B program facilitates this scope.
On one hand, the business community is asking for more flexible H-1B rules and increased H-1B cap numbers, especially in certain fields and for US university graduates. On the other hand, there are claims of abuse of the system. Our expectation is that there may be some changes to the program but we do not anticipate that the H-1B work visa program will be eliminated altogether or dramatically changed.
The H-4 Employment Authorization rule has been in existence for about 18 months now but there is a possibility that the Trump administration may seek to reverse or limit it in an effort to decrease the number of foreign nationals who are eligible to work. A similar rule applies to spouses of L-1, E2, E1 and E3 workers who are able to apply for Employment Authorization.
The H-4 Spouse EAD rule has been very successful and popular, especially among certain communities of immigrants and employers, due to its flexibility. Both the H-4 and L-4, E1, E2 and E3 EAD rules are regulation-based which means that each of them can be reversed by a rulemaking process (which can take months to implement). If the Trump administration takes a proactive approach on finding ways to restrict work authorization for foreign nationals, going after this rule is a distinct possibility.
President-elect Trump has discussed imposing some sort of “extreme vetting” to nationals of certain countries or of certain religious origin. It is possible that this kind of increased vetting may become part of the US citizenship application process, which will lead to higher scrutiny, delays and, possibly, denials. While we have no details about this kind of vetting may be done, the possibility of increased screening is high. Likewise, the US naturalization requirements may be changed, making it harder for a number of people to qualify. It would be prudent for those US permanent residents who are eligible (or will soon be) to apply for US citizenship. Feel free to contact our office at 617-536-0584 to assess whether you are eligible to file an Application for Naturalization.
WHAT CAN YOU DO?
Trump will become President on January 20, 2017. We have few details about the actual priorities of the Trump administration with respect to immigration law. We believe, however, that there will be some changes to at least some visa programs, which would likely make it harder to obtain certain immigration benefits. We suggest to employers and individuals who are planning to initiate certain immigration-related steps to consider doing so earlier rather than later. Some of you may have a path to legal status and we urge you to apply for relief now before Trump makes more stringent immigration policies and eliminates existing programs. Immigration Solutions LLC will continue to monitor very closely any developments and we will be providing alerts and updates on our website and newsletter.