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

Visa abuse investigations

On November 21 2016 President-elect Trump released a short video detailing his immediate plans in office. In the video, Trump focused on directing the Labour Department to investigate visa abuses. This is consistent with Trump's position paper on immigration, which details his plans to implement a nationwide E-Verify requirement, create a visa tracking system and introduce stricter penalties for individuals who overstay a visa.

The Centre for Immigration Studies ? a non-profit organisation which routinely presents on immigration issues before Congress ? has released a report on immigration actions that the next president could take. The report also finds that site visits and compliance could increase under the next administration. The report indicates that the next administration could restore the US Citizenship and Immigration Services (USCIS) Fraud Detection and National Security Division's analytical programme to:

  • conduct regular benefits fraud assessments to determine the fraud rates by visa category;
  • implement enhanced screening for categories and types of applicant deemed to be higher risk;
  • direct Immigration and Customs Enforcement and USCIS to coordinate and initiate a programme to systematically investigate, prosecute or take available civil actions against abuses within each of the non-immigrant worker categories; and
  • issue an executive order directing that employers which violate immigration or employment law provisions be barred from using immigration programmes for two to five years, depending on the severity of the violation.

Cabinet choices

Trump has nominated Republican Senator Jeff Sessions to be the next attorney general. This selection could have various consequences for employment-based immigration law. Throughout his career in the Senate, Sessions has spearheaded the fight against immigration reform and has advocated for severe restrictions on visas and expanded immigration enforcement.

The attorney general has a powerful role under the Immigration and Nationality Act, with duties that include:

  • managing the US immigration courts;
  • creating new regulations;
  • controlling the entry of illegal immigrants;
  • determining how many employees USCIS should require;
  • reviewing past administrative determinations in immigration proceedings, including Board of Immigration Appeals' decisions and "delegat[ing] such authority and perform[ing] such other acts as [he or she] determines to be necessary for carrying out this section"; and
  • establishing whether an actual or imminent mass influx of aliens presents urgent circumstances requiring a federal response to authorise state or local law enforcement to perform duties under the Immigration and Nationality Act.

Even though the Department of Homeland Security (DHS) administers and enforces the Immigration and Nationality Act, the attorney general's determination and ruling on all questions of law is controlling.

Further, Sessions's website states that he was one of the leading opponents of Senate Bill 744 (the Border Security, Economic Opportunity and Immigration Modernisation Act), more commonly known as the 'Gang of Eight' bill, which would increase the number of non-immigrant workers entering the United States. Sessions also states that he "promotes an immigration policy that prioritizes the jobs, wages, and security of the American people".

Potential changes to H-1B visa

Trump could implement several changes to the H-1B visa. His position paper on immigration states that he plans to increase the prevailing wage for H-1B specialty occupation visas and require companies to hire US workers before hiring foreign nationals if filing a H-1B. The Centre for Immigration Studies report detailed several actions that the next administration could take regarding the H-1B visa, including:

  • increasing the fees that employers must pay for H-1B visas;
  • increasing the salary for H-1B workers;
  • denying H-1B visas if the company hiring the worker lays off citizens or resident aliens; and
  • denying H-1B visas to employers which violate various employment laws.

It is unclear whether any of these actions will be implemented by the incoming administration.

Constitutional limits

While Trump championed immigration enforcement and changes to the current immigration system throughout the 2016 election season, he is required to structure US immigration policy using the regulatory process, executive actions and 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 as they are monitored by laws and a court system that set boundaries on government actions.(1) Further, restrictions on highly skilled immigration could have a devastating impact on the United States, 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 that restricting highly skilled immigration could have on corporate growth.

Obama's immigration legacy

President Obama is attempting to ensure that several of his immigration initiatives are implemented before Trump takes office on January 20 2017. One of those includes the DHS passage of a final rule ("Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Programme Improvements Affecting High-Skilled Non-immigrant Workers") on November 18 2016 that implements provisions of the American Competiveness in the 21st Century Act of 2000 and a second federal law, the American Competitiveness and Workforce Improvement Act of 1998. This rule becomes effective on January 17 2017.

If the DHS had not published the final rule, the Trump administration could have easily and immediately changed USCIS operating procedures and adjudication rules affecting H-1B portability and a broad category of employment-based I-140 adjustments. With publication of the final rule, the incoming administration will have to formally rescind this regulation or publish new, superseding proposed rules if it wishes to substantially change the underlying policy and open the action to public scrutiny, congressional intercession and potential court challenge.

Endnotes

(1) See Wendy Feliz, "What a Donald Trump Victory Means for Immigrant Rights", American Immigration Council.

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