As part of his first week initiatives, President Trump turned the focus of his administration toward immigration. On January 25, 2017, President Trump signed two executive orders addressing interior immigration enforcement and the border wall with Mexico. While many parts of these executive orders won’t have a significant direct impact on employers, they look to increase the resources of U.S. Immigration and Customs Enforcement (ICE) and redefine the enforcement priorities for the federal government, enhancing the scrutiny on employers with large undocumented immigrant workforces.
Executive Order: Enhancing Public Safety in the Interior of the United States
President Trump’s internal immigration enforcement action targets “sanctuary cities” and expands the enforcement priorities associated with undocumented immigrants in the United States. Relating to sanctuary cities, President Trump will target—through funding deprivation—cities where local leaders refuse to share information with the federal government about citizenship or immigration status.
In addition, the Trump administration looks to increase deportations by broadening the enforcement priorities for undocumented immigrants in the United States. Specifically, the new enforcement priority will be to remove those immigrants who
- have been convicted of any criminal offense;
- have been charged with any criminal offense, where such charge has not been resolved;
- have committed acts that constitute a chargeable offense;
- have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency;
- have abused any program related to receipt of public benefits;
- are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States; or
- in the judgment of an immigration officer, otherwise pose a risk to public safety or national security.
To accomplish this ramp-up in deportations, ICE is authorized to hire 10,000 new immigration enforcement and removal officers. This increase in resources is likely to hit employers the hardest of any of Trump’s initiatives. Expect a dramatic increase across the country in employer raids by ICE in an effort to penalize companies that are employing undocumented immigrants. Companies should review their Forms I-9 to ensure their workforce is compliant with federal law. In addition, the new enforcement priorities dramatically broaden the individuals who may be subject to removal under the Trump administration.
Executive Order: Border Security and Immigration Enforcement Improvements
One of the cornerstones of Donald Trump’s presidential campaign involved a promise to build a physical wall on the U.S.-Mexico border. President Trump’s executive order announces the building of a border wall to fulfill these promises. But the practical ability to build the wall is in question.
First, the wall will be expensive. Estimates place the total cost of the wall between $12 billion and $25 billion. While candidate Trump consistently stated Mexico would pay for the wall, he has backed off that rhetoric in recent weeks, stating Mexico would reimburse the United States for the wall. With Mexico off the hook for initial costs, President Trump is expected to work with Congress to divert other federal money to his construction efforts.
Second, engineering, environmental, and practical construction issues exist. It will take significant time to plan and obtain the essential approvals to begin constructing the wall. One of these difficulties will be determining how to build a wall on the river banks that dominate portions of the U.S.-Mexico border. It is likely for these reasons that new Secretary of Homeland Security John Kelly stated the wall wouldn’t be built anytime soon in his confirmation hearings. Instead, the more immediate impact of President Trump’s executive action comes from the hiring of 5,000 additional border patrol agents. Many of these individuals are expected to be placed on the U.S.-Mexico border. In addition, the Trump administration has ended the United States’ policy that releases undocumented immigrants detained by federal officials before trial.
Anticipated Executive Order: Protecting the Nation From Terrorist Attacks by Foreign Nationals
President Trump’s executive actions on immigration are expected to suspend the United States’ entire refugee program for four months. Once reinstated, the Trump administration will cap the number of refugees admitted to the United States at 50,000 in 2017, which is about half of the 110,000 proposed by the Obama administration. In addition, the program to admit Syrian refugees will end indefinitely.
In coordination with ending the refugee program in Syria, President Trump appears to be ready to suspend the ability of U.S. immigrants and nonimmigrants from Syria, Iraq, Iran, Libya, Somalia, Sudan, and Yemen to enter the United States for at least 30 days. Companies should advise employees from these countries about potential risks in traveling internationally while this ban is in place.
Finally, the U.S. Department of State is expected to halt the interview waiver “drop-box” program used to renew expiring visas. As a result, all individuals applying for a visa will be required to attend an in-person interview. But the Trump administration is set to authorize the Department of State to hire additional personnel to ensure wait times do not increase as a result of the additional caseload.
Unknown Executive Order: DACA
One of the immigration policies expected to be changed by the Trump administration was the Deferred Action for Childhood Arrivals (DACA) program implemented by the Obama administration. Currently, it is unclear how the Trump administration will move forward with this program. DACA has not been part of this initial wave of executive orders by the Trump administration as reports state the White House is looking into how revoking the program will affect the administration’s political capital moving forward. Currently, a bipartisan effort by Senators Lindsey Graham (R-SC) and Dick Durbin (D-IL) to pass the BRIDGE Act would allow people eligible for DACA to continue living in the United States with permission from the federal government. If the BRIDGE Act is passed, it would legislatively create an option for DACA recipients to avoid deportation while preventing the executive branch from unilaterally terminating the program.
Impact on Employers
Employers are likely to be most heavily impacted by President Trump’s action to increase ICE resources as they relate to deporting undocumented immigrants. Employers should expect an increase in worksite raids by ICE agents and an increase in scrutiny on Forms I-9. As a result, companies should consider auditing their Forms I-9 to ensure their paperwork and workforce is compliant with federal law. In addition, employers with employees from Syria, Iraq, Iran, Libya, Somalia, Sudan, and Yemen should counsel employees from those countries on the risks associated with international travel during President Trump’s proposed ban.