A great deal of information is circulating through the legal press speculating about the changes the Trump administration will bring to the immigration benefits and enforcement landscape. The overall direction of immigration changes under the new administration is clear, but the legal specifics are not yet defined. With inauguration less than a month away, employers need to consider how to: prepare for yet-to-be determined changes; reduce exposure to immigration enforcement actions; and safeguard access to needed foreign national employee talent.
In this alert, we suggest options for US businesses to prepare for potential Trump administration immigration changes.
To evaluate the impact of any actual or potential changes in the immigration sphere, employers must have access to accurate internal workforce data. Information on company-sponsored employees should be immediately accessible. Key data points include: the type and category of filings; filing dates; status of petitions and applications; and country of chargeability. This information should be compiled and assessed early in 2017 to identify employees in vulnerable categories and plan for possible proactive steps.
Employers may have foreign national employees within their workforce in categories which are not employer-sponsored. They should assess areas of vulnerability within this portion of their workforce, but must be careful not to violate any employment or other laws by making improper inquiries into immigration status or country of origin. Employers with properly completed Form I-9s, Employment Eligibility Verification, can access information which can provide insights into their employees’ immigration categories. This data can be used by employers to help determine the impact of immigration law changes upon their company, but must tread carefully and staying clear of any discriminatory practices.
Vulnerable Immigration Categories
There are a number of legal immigration categories that are targets for change under a Trump administration. The beneficiaries of President Obama’s Deferred Action for Childhood Arrivals (DACA) program are the most vulnerable. The DACA program, created by Executive Order, benefits undocumented young adults often referred to as “dreamers.” As a candidate, Donald Trump vowed to end this program. President-elect Trump has referenced doing “something” for DACA beneficiaries, without specifics. In total, USCIS has issued over 600,000 initial DACA approvals and almost 150,000 DACA renewals. Under President Trump, the program could end immediately or be allowed to expire.
The Optional Practical Training (OPT) program for F-1 students is also a potential Trump administration target. Recent changes in this program have led to an overall three-year OPT duration for students with degrees in designated Science, Technology, Engineering, and Math (STEM) disciplines. The OPT program recently underwent regulatory overhaul, with the addition of stringent training plan protocols and increased monitoring. Since OPT is created by regulation, modifications or elimination requires regulatory change by the Department of Homeland Security. Thus, OPT cannot be eliminated or modified by the President, alone, nor can it be altered immediately upon the change in administration. However, the potential for change is important for employers who traditionally rely on recent graduates for entry level positions.
The TN category for Canadian and Mexican professionals was created by the North American Free Trade Administration (NAFTA). As a candidate, Mr. Trump criticized and promised to renegotiate NAFTA. Therefore, this is a vulnerable category. More information and analysis of this issue is contained in TN Visa Category Faces Uncertain Future.
Other categories are likely to be altered by limitations or stricter requirements. The H-1B program has faced much criticism, but is utilized by key business sectors. Thus, changes are most likely to be in the form of more stringent US worker protections, such as changes to wage requirements and the addition of labor market tests. This type of change would require revision of Department of Labor (DOL) regulations. Thus, there will be advance notification through the rulemaking process. Other changes, such as modifying the annual numerical limit on H-1B petitions, would require a legislative change.
Assess Future Workforce Needs
In parallel with current workforce assessment, employers must gauge their future needs. Employers have some options regarding the timing of employer-sponsored immigration filings. Thought should be given to timing filings, where possible, prior to changes in the law, regulations or policy. Changes are typically prospective, thus, there is some level of security in pursuing currently available benefits. Of course, long-term immigration options, such as permanent residence, typically involve multiple steps over an extended period of time. Employers who rely on foreign nationals for key positions should schedule periodic assessments of the impact of changes and proposals on their workforce.
Employer Compliance: E-Verify and Form I-9
Immigration enforcement was a cornerstone of the Trump campaign. Workplace enforcement seeks to reduce incentives for undocumented migration. It also provides revenue through imposition of fines. Thus, employers must carefully review their hiring and employment-related recordkeeping procedures to identify lapses and vulnerabilities.
President-elect Trump supports mandatory E-Verify usage. Employers must consider the impact of mandatory E-Verify on their businesses. Employers new to E-Verify will need to make a commitment of H.R. staffing for E-Verify processing as well as for training and ongoing compliance. Mandating E-Verify would require legislative change, thus, any change will not be immediate.
The long-standing Form I-9, Employment Eligibility Verification, is an immediate area of vulnerability for many employers. Employers need to assess their I-9 compliance proactively. It is vital to invest in training and technical resources to address weaknesses and maintain compliant systems. Compliance requires ongoing efforts as requirements change periodically, as illustrated by our recent blog, “Employers Must Use Revised Form I-9 Starting January 22, 2017."
Preparing for and adapting to legal changes typically generates costs. Forward thinking employers will anticipate likely increases in their need for professional advice, H.R. staff, training and technology. When considering the impact of changes, employers should be mindful of possible new, often substantial, immigration filing fees, tied to enforcement initiatives. Additionally, immigration adjudications cultural shifts add to the effort and related cost involved in each immigration filing. Such a shift, known as the “culture of no,” arose after 9/11 and could return with the Trump administration.
The one thing that is certain is that change is coming. Employers utilizing global talent and engaging in multinational business transactions will need to make assessments and engage in planning and adaptations as changes occur.