For those of us reading tea leaves after the election, the question remains: how will the election of Donald Trump to the office of the presidency affect immigration? Candidate Trump became well-known for his strong anti-immigration rhetoric, especially when speaking on the topic of illegal immigrants. But how much of that campaign rhetoric will translate into executive action remains to be seen.
During the campaign, President-elect Trump laid out the following key proposals:
- build a physical wall on the southern border;
- detain and remove anyone who illegally crosses the border with Mexico;
- work with local, state, and federal law enforcement to deport all illegal immigrants who have been convicted of a crime;
- increase the number of ICE agents and increase the number of agents patrolling the border with Mexico;
- terminate President Obama’s 2014 executive actions on immigration, which granted temporary deportation stays to some immigrants (i.e., children under the DREAM Act, as discussed in greater detail below);
- suspend the issuance of visas where adequate screening cannot occur until proven and effective vetting mechanisms can be put into place;
- ensure that a biometric entry-exit visa tracking system is fully implemented at all land, air, and sea ports; and
- increase workplace enforcement and mandate all employers to start using E-Verify, which is an on-line program that confirms, before a worker is employed, that they are authorized to work in this country. Currently, government contractors are required to use E-Verify, while many companies use it voluntarily.
President-elect Trump’s “100-Day Action Plan to Make America Great Again” lays out his plan for his first 100 days in office. Many of the proposals will impact immigration, and the policies outlined are largely unchanged from his campaign plan discussed above. The plan also notes his commitment to cut all federal funding to “sanctuary cities,” where authorities do not ask to see an immigrant’s paperwork as a matter of local policy, and likewise, do not prosecute people on the basis of being an undocumented immigrant. President-elect Trump’s plan also promises to remove more than “2 million criminal illegal immigrants from the country and cancel visas to foreign countries that won’t take them back.” He has also suggested a suspension of all visas for nationals of “Muslim regions” and/or extra scrutiny for anyone who is a Muslim. The details of this program have not been disclosed yet, and a list of where these regions are located has not been released, but Syria will likely be at the top of the list.
According to the press, the nascent Trump administration is considering reinstating a database of immigrants from Muslim-majority countries which the federal government maintained from 2002 to 2011. The database, known as the National Security Entry-Exit Registration System or NSEERS, was put into place by the Bush administration after the events of 9/11. While NSEERS was in effect, certain “foreign citizens and nationals” in the United States were required to periodically submit to fingerprinting, photos, and interviews at immigration offices. The “special registration” system only applied to men over the age of 16, whose country of origin was included on a list of 24 majority-Muslim countries (plus North Korea), and who held non-immigrant visas (including tourism and work visas). In 2011, the Obama administration removed all 25 countries from the “special registration” list and suspended the program.
One question raised by President-elect Trump’s statements that he will overturn all of President Obama’s executive actions on immigration is whether “dreamers” will be deported along with the other illegal immigrants that President-elect Trump has promised to deport. Dreamers is a term given to young undocumented immigrants brought to the United States as children by their parents and protected by the Development, Relief, and Education for Alien Minors (DREAM) Act. Under Obama’s Deferred Action for Childhood Arrivals (DACA), these individuals were given work permits and protected from deportation on a two-year renewable basis if they registered with USCIS and submitted to a background check.
To respond to this concern, in early December 2016 Senators Lindsey Graham (R-S.C.) and Dick Durbin (D-Ill.) introduced a bipartisan bill in the Senate that would protect dreamers by extending the legal protections they are granted by DACA. The bill is called “Bar Removal of Immigrants who Dream and Grow the Economy” or BRIDGE Act. This bill would not grant amnesty or citizenship but would let these dreamers continue living legally in the United States for three-year renewable terms. The BRIDGE Act would provide DACA-eligible individuals the chance to apply for a provisional protected presence, which is temporary protection from deportation similar to that provided by DACA. Employment authorization would also be granted after recipients pay a fee and pass stringent background checks.
Many of President-elect Trump’s proposals on immigration deal with illegal immigration, so a large question remains as to whether and how he will shift policies on legal immigration. While the newly elected president has not specifically stated his position on certain visa programs, he has criticized the H-1B system in the past and claimed that H-1B visas are “decimating” U.S. workers. Annually, 65,000 foreign professional workers and 20,000 graduate students from U.S. universities are admitted into the United States under the H-1B program. President-elect Trump sent mixed messages during the campaign, sometimes criticizing the visas, but other times calling them an important way to retain foreign talent. It is very probable that his own companies use H-1B workers, as do most U.S. companies when possible. The H-1B program has been oversubscribed for years, meaning there is a much greater demand than the quota provides. In 2016, less than 30 percent of the timely applicants were able to get the visa.
We expect increased requirements in order to qualify for the H-1B and L work visas programs. President-elect Trump has mentioned increasing wage requirements (there are already wage requirements in place through the U.S. Department of Labor, but we expect the wages to be increased), and possibly mandating a labor market test before filing the H-1B or L petition. It is unlikely that this can all be accomplished before the next H-1B quota filing the first week of April 2017, but should be expected sometime in 2017. It is also unlikely that the Republican Congress, with its pro-business policies, would allow either work visa to be eliminated.
However, the appointment of Senator Jeff Sessions (R-Ala.), a long-time critic of the H-1B visa worker program, as attorney general is a concern. For years Senator Sessions has urged severe restrictions on visas, called for drastically expanded immigration enforcement, and blocked all practical reforms to our outdated immigration system. As the country’s top lawyer and highest-ranking law enforcement official tasked with administering justice, the attorney general has substantial authority over our nation’s laws, including our immigration laws. The U.S. Department of Justice has investigative authority over immigration, and Sessions could direct the agency to intensify immigration inspections and investigations at U.S. companies that use visa programs. From the press, it appears that Senator Session is likely to be confirmed by Congress.
On the other hand, President-elect Trump’s decision to nominate fast food CEO Andrew Puzder to head the U.S. Department of Labor has drawn backlash from those who support anti-immigrant policies, because of his support for foreign workers and advocacy for a path to legal status that ends short of citizenship. How Congress ultimately will respond to this nomination remains to be seen as of this writing.
Other changes to visas programs that are likely to happen under President-elect Trump include renegotiating the North American Free Trade Agreement (NAFTA), which contains the TN work visa for Canadian and Mexican workers. We do not know what will happen to this visa at this time, and while the list of professions needs to be updated (it is two decades old), the TN visa is utilized by many U.S. companies and should not be eliminated or restricted. Further, the extension of the EB-5 Regional Center Program is currently tied to federal government funding. The president-elect has not taken a position yet on the EB-5 program, but his son-in-law has reportedly used the program to finance housing in Jersey City, N.J. The Senate has passed continuing resolution legislation that will keep the program funded through April 28, 2017.
Many of the changes to immigration policies President-elect Trump has promised require a change to the laws, and therefore Congressional support. Many of the immigration policies and proposals President-elect Trump has suggested will also require an increased budget, which also must be authorized by Congress. So Congress will be key in determining which Trump immigration proposals will be enacted. Because the Republicans currently have a majority in both the House and Senate, the newly elected president’s legislative proposals might be viewed favorably.
President-elect Trump might choose to take action using executive power, but that option could pose problems. In 2014, responding to congressional inaction on immigration reform, President Obama issued administrative reforms on immigration. Certain initiatives in the executive action were challenged by Texas and 25 other states, which alleged the president had overstepped his executive authority. The case was appealed all the way up to the Supreme Court, which issued a 4-to-4 split decision, effectively leaving in place the decision of the U.S. Court of Appeals for the Fifth Circuit, blocking protections for millions of immigrants. In October, the Supreme Court denied the Obama administration’s request to rehear arguments in the 2016-17 session, ending all appeals. It is likely that any executive action taken by President-elect Trump on immigration reform will also be challenged by the states in court. However, the newly elected president will nominate a Supreme Court justice early in his administration, and that justice will most likely be the 4-4 tie breaker in the Supreme Court on immigration challenges. In short, with a Republican majority in the House and Senate, and a new conservative Supreme Court justice, President-elect Trump might be unstoppable on immigration issues.