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-enforcementhttp://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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