Beyond the Wall: Immigration Changes to Expect in 201701.20.17
Immigration served as a rallying cry for many during the 2016 Presidential election, but now that the dust has settled, what, if any, changes can employers expect and how will the election of Donald Trump affect U.S. immigration policy? During the 2016 election, President Trump proposed a broad vision of U.S. immigration that included:
- Building an impenetrable physical wall on the southern border with Mexico;
- Ending catch-and-release by detaining anyone who illegally enters the United States until they are removed;
- Removing criminal aliens from the United States in joint operations with local, state, and federal law enforcement;
- Ending sanctuary cities;
- Terminating President Obama's executive orders on immigration;
- Increasing the number of immigration enforcement agents;
- Suspending the issuance of visas to any country where adequate screening cannot occur, until proven and effective vetting mechanisms can be put into place;
- Ensuring that a biometric entry-exit visa tracking system is fully implemented at all land, air, and sea ports; and
- Increasing work site enforcement to curb the hiring and employment of undocumented workers.
Many of President Trump's immigration proposals are aimed at curbing and addressing issues related to illegal immigration. This is perhaps good news for U.S. employers who rely on highly skilled, employment-authorized foreign workers who are not likely to be the target of any sweeping immigration changes, at least initially. However, President Trump's emphasis on protecting U.S. workers throughout his campaign, coupled with his nomination of Sen. Jeff Sessions for U.S. Attorney General, suggests that changes to employment-based immigration programs could be brewing as well.
Sen. Sessions has been a long-time critic of the H-1B visa program, claiming that U.S. workers are being replaced by cheap foreign labor. His nomination for Attorney General lends credence to predications that President Trump will seek to change the H-1B program. Potential changes include increasing prevailing wage rates and requiring employers to demonstrate attempts to hire U.S. workers. Protecting U.S. workers could also serve as motivation for limiting or even pausing the issuance of green cards. Additionally, employers with Canadian and/or Mexican workers with TN status should be aware that President Trump has repeatedly called for the renegotiation of or withdrawal from NAFTA, the treaty which established the TN visa program. Changes to or withdrawal from the NAFTA treaty could eliminate the TN work visa category.
Employers can take some comfort in the fact that new regulations related to certain immigrant and highly skilled non-immigrant workers went into effect on January 17, 2017 just days prior to the inauguration. By and large, these regulations codify and clarify existing U.S. Department of Homeland Security policies, memoranda, and guidance, providing employers and foreign workers with a safeguard against shifts in established practices under the new administration. It is worth noting that although the rule took effect in the waning hours of the Obama administration, it is the result of a lengthy administrative process including a notice and comment period and publication in the Federal Register. As such, it cannot be easily repealed by executive action. While revocation is certainly possible with Republican control in both the executive and legislative branches, the regulation will most likely remain in effect, providing employers and employees time to benefit from the changes.
The new regulations seek to provide greater flexibility and certainty for both U.S. employers and foreign workers by addressing important issues, including:
- H-1B extensions of stay beyond the six-year maximum period;
- I-140 portability for certain workers with pending adjustment of status applications;
- H-1B portability;
- Counting workers against the H-1B numerical cap;
- H-1B cap-exemption determinations for employers;
- Protections for H-1B employees related to retaliatory action claims;
- Establishment and retention of priority dates in permanent residence cases;
- Employment authorization for backlogged employment-based green card applicants with "compelling circumstances;"
- Establishment of grace periods for certain non-immigrant workers;
- H-1B licensing requirements; and
- Adjudication of employment authorization applications.
While the new final regulations ensure that many policies relating to highly skilled workers will not change overnight, immigration was too much of a hot-button issue during the presidential campaign to remain on the back burner for long. So, what can we expect for immigration in 2017? Enforcement actions against employers who hire undocumented workers will likely increase as President Trump has pledged to immediately deport millions of undocumented immigrants. E-Verify will likely become mandatory and implemented nationwide. It is also very likely that the Trump administration will roll back executive orders signed by President Obama, including deportation protections for some undocumented children and parents. For employment-based immigration issues, the picture is less clear, but it's possible that changes will be made to the H-1B and L-1 programs, TN visas may be impacted if the United States re-negotiates or withdraws from NAFTA, and adjudications of employment-based petitions/applications will become more challenging.