Immigration was a frequent topic of conversation during the presidential campaign. With limited exceptions, however, the rhetoric generally did not encompass high-skilled business immigration. Indeed, President-elect Donald Trump’s 10-point immigration plan overwhelmingly focuses on undocumented immigration and border security and does not set forth any specific initiatives that would substantially alter the business immigration landscape.
Although reform of the business immigration system is unlikely to be a priority for the Trump administration, there are some indications that it nonetheless remains on the radar. For instance, the President-elect’s vision statement includes a call to “boost wages and to ensure that open jobs are offered to American workers first”—although it does not offer any specific proposals on this goal, nor does it acknowledge that the current regulatory system already contains numerous provisions dedicated to protecting the U.S. labor market. It is also worthwhile to acknowledge that the frequent campaign talk about renegotiating trade agreements could have a collateral impact on business immigration, as some of these agreements contain provisions on high-skilled immigration. Additionally, any changes to the background check or security clearance processes are likely to impact all visa applicants, including high-skilled workers.
While the prospect of change can create uncertainty, there are two important notions to keep in mind. First, any significant changes to the business immigration system are unlikely to be sudden or based on unilateral presidential action. All of the major components of the high-skilled system—including H-1B and L-1 visas, and labor certification applications—are based upon statutes enacted by Congress and the implementing regulations by the respective government agencies. A major change to the current framework requires action by Congress and/or formal rulemaking under the Administrative Procedure Act. Neither of these processes is quick, and both present the opportunity for interested parties to make their voices heard. Any presidential directive—such as an executive action—is typically limited to the interpretation of existing regulations.
Second, not all change is negative. In many respects, the employment-based immigration system is based upon 20th century laws that are struggling to keep pace with 21st century business practices. Employers (and their foreign national employees) across the country would likely welcome thoughtful immigration proposals that seek to attract and retain top talent, enhance competitiveness in a global economy, and align with the pace of real-world business practices. Changes that alleviate the uncertainty of the H-1B quota system, or reduce the significant backlogs for many green card applicants, are just two of the many initiatives that would modernize the business immigration system and be a welcome development for employers that rely upon high-skilled foreign talent.
It is too early to ascertain whether or when any reforms to the business immigration system under the Trump administration will occur. Ogletree Deakins will continue to carefully monitor these developments. Stay tuned for details on our upcoming webinar, which will be scheduled for January 2017, for additional immigration insights.