5 Business Based Immigration Considerations Under President-Elect Trump

While the incoming Trump Administration has not been entirely clear about how aggressively it will pursue change of business immigration, and its primary stated agenda is enforcement action against undocumented immigrants, there have been some indications on what changes to business based immigration to expect under a Trump Administration.

Go to the profile of Desiree Schulz
Dec 12, 2016
0
0
Upvote 0 Comment

5 Business Based Immigration Considerations Under President-Elect Trump

While the incoming Trump Administration has not been entirely clear about how aggressively it will pursue change of business immigration, and its primary stated agenda is 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 nation-wide 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:

Senator Jeff Sessions Selected as Attorney General

President-Elect Donald Trumphas 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 authorize 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]

General John Kelly Selected to be the Department of Homeland Security (DHS) Secretary

President Elect selected General John Kelley to be the next Department of Homeland Security Secretary. The mission of DHS is to protect our borders. Numerous agencies make up DHS including multiple immigration agencies such as U.S. Customs and Border Protection (CBP), U.S. Citizenship and Immigration Services (USCIS), and U.S. Immigration and Customs Enforcement (ICE).[8]

President Elect Trump, following his campaign rhetoric, claims that Kelly is the ideal candidate to stop illegal immigration and secure our borders. Evidence indicates General Kelley will likely focus heavily on illegal immigration. For example,General Kelley spoke before Congress in 2014 and 2015 on the national security threats with drug smuggling on the southern border.[9] General Kelly has worked on several missions with counter narcotics trafficking and held routine meetings with Central and South American leaders. In his communication with Central American leaders and in his testimony before Congress, General Kelly indicated the individuals illegally entering the U.S. from Central America are largely fleeing because of violence in their home countries. It is still unclear what General Kelly's stance is on employment-based immigration to the United States.

As Trump has selected several military Generals to fill key cabinet positions[10]

CEO Andrew Puzder Selected to be de Secretary of the U.S. Department of Labor

The Department of Labor (DOL) plays an important role in immigration. Specific to employment-based immigration, Employment and Training Administration's (ETA) Office of Foreign Labor Certification must certify that the requirements for a visa classification have been met before an employer may petition USCIS for a foreign worker.[11] The DOL Wage and Hour Division requires employers to maintain Employment Eligibility Verification Forms, I-9's.

Mr. Pudzer has been outspoken for the past several years on pro-immigration reform. In an editorial last year, Pudzer stated, ""The GOP needs to end the family drama and resolve the policy dispute, not least because it is the right thing to do in every sense — economically, politically and morally."[12] Further, he explained, "The best way to protect American workers is to generate economic growth. This is not synonymous with aggressively restricting immigration."

President Elect Trump's selection of Mr. Pudzer parallels his evolving immigration stance post-election. On December 6[13]

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. [14] The Center for Immigration Studies report detailed several actions the next administration could take with regards to the H-1B visa.[15] 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.[16] 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

on November 18, 2016 that implements provisions of The American Competiveness 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 17[17]

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 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 potential court challenge.

This information was prepared and provided by Melissa Winkler, US Immigration Attorney at Fakhouy Global Immigration. Please contact Mrs. Winkler with any questions at melissa@employmentimmigration.com.

[1] http://www.nytimes.com/2016/11/21/us/politics/dona...

[2] https://assets.donaldjtrump.com/Immigration-Reform...

[3] http://cis.org/A-Pen-and-a-Phone-79-immigration-ac...

[4] http://immigrationimpact.com/2016/11/18/jeff-sessi...

[5] https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0...

[6] https://www.dhs.gov/topic/immigration-enforcement; http://immigrationimpact.com/2016/11/18/jeff-sessi...

[7] http://www.sessions.senate.gov/public/index.cfm/im...

[8] https://www.dhs.gov/sites/default/files/publicatio...

[9] http://www.washingtontimes.com/news/2016/dec/7/joh...

[10] http://www.cbsnews.com/news/how-unusual-is-trumps-...

[11] http://www.migrationpolicy.org/article/who-does-wh...

[12] http://www.wsj.com/articles/ending-the-republican-...

[13] http://www.npr.org/2016/12/07/504570429/trumps-vic...

[14] https://assets.donaldjtrump.com/Immigration-Reform...

[15] http://cis.org/A-Pen-and-a-Phone-79-immigration-ac...

[16] http://immigrationimpact.com/2016/11/09/donald-tru...

[17] https://www.federalregister.gov/documents/2016/11/...

Go to the profile of Desiree Schulz

Desiree Schulz

Manager of Global Operations, Fakhoury Global Immigration

No comments yet.