Business Immigration Insights

Donald Trump’s statements about the U.S. immigration system were a main feature of his presidential campaign. Now that he has been elected, many are questioning whether and how those statements might become actual policies. We have already begun fielding questions from clients asking how new policies, regulations and laws will affect their businesses, their employees, their families, and themselves.

Certain changes could happen more quickly than others. Administrative policies and Executive Orders could be changed immediately at the will of the President and appointed officials, while changes to immigration regulations require many months or sometimes years. New laws or changes to existing immigration laws require action by both chambers of Congress. Because Republicans will hold majorities in both the Senate and the House of Representatives, such legislative changes could occur relatively quickly.

Based on Mr. Trump’s comments during the campaign, changes in the following areas are possible:

1. H-1B Program. While Mr. Trump has made casual statements about ending the H-1B program for highly skilled workers, we believe this is unlikely due to his pro-business stance. However, significant changes to the program are possible, such as increasing prevailing wage requirements and mandating a labor market test prior to filing a petition. These legislative and/or regulatory changes have been proposed in recent years by members of Congress, and could happen in 2017. Although, it is unlikely that such changes could be implemented before the upcoming H-1B cap season in April.
2. Travel Restrictions. Mr. Trump has proposed various restrictions on certain individuals seeking to enter the United States. He originally proposed temporarily banning all Muslims from entering the country. He then softened his position by suggesting that persons from certain high risk regions could be barred entry, or that some applicants would be subject to “extreme vetting.” Presidents may impose such restrictions at will for national security purposes. Therefore, Mr. Trump could impose such restrictions immediately upon taking office.
3. TN Status. Mr. Trump has indicated that he will seek to re-negotiate treaties with other countries, including NAFTA. It remains to be seen whether Mr. Trump will take steps to limit or halt the granting of NAFTA (TN) employment authorization to professional employees of U.S. companies. Under the provisions of NAFTA, a U.S. President could withdraw completely from the trade agreement in just six months without Congressional approval.
4. Enforcement. Mr. Trump has promised to build a wall along the entire southern border and triple the number of immigration enforcement agents. He has also indicated that detention of unlawful border crossers will be mandatory and that he will continue the current administration’s policy of detaining criminal aliens and placing them in removal proceedings. Mr. Trump’s other enforcement proposals include mandatory E-Verify and an enhanced biometric system to track departures by air and sea. Many of these actions (like building the wall or making E-Verify mandatory) would require congressional legislation, while others (such as the enhanced biometrics system) could be accomplished by presidential directive.
5. Deferred Action for Childhood Arrivals (DACA). Mr. Trump has promised that he will immediately revoke President Obama’s Executive Orders upon taking office. Cancellation of the Executive Order creating the DACA program will have the greatest impact, because it benefits more than 1.2 million young immigrants. Mr. Trump could immediately cancel the program upon taking office in January 2017. What we do not know is (a) whether those who have already been granted benefits will be permitted to remain in the United States until their authorization expires; or (b) whether the personal data provided to the government will be used to locate and detain applicants. Applicants who are applying for DACA or renewing their status are now forced to consider this evolving situation carefully before proceeding with new applications.
6. Refugees. Mr. Trump’s desire to limit refugees from being resettled in the United States is no secret. Therefore, it is likely that refugee numbers will decrease significantly during Mr. Trump’s time in office. Expect to see a complete ban on refugees from Syria, with possible exceptions for Christians and other non-Muslims. Presidents have the authority to determine how many refugees the United States accepts each year and which countries they come from, and Mr. Trump could begin restricting refugee admissions immediately upon taking office.

While Mr. Trump has not publicly commented about many other areas of our immigration system, there is an expectation that his administration and the Republican led Congress will enact changes to other programs. For example, he could decline to renew Temporary Protected Status (TPS) designation for countries impacted by civil war or natural disasters, etc. Other areas that could be impacted include Obama administration regulations permitting work authorization for international students (F-1 STEM OPT) and certain spouses of H-1B workers.

We recognize that U.S. businesses and their employees are concerned about the uncertainty surrounding possible changes to the immigration system. Hunton’s immigration attorneys will continue to closely monitor such developments in the days, weeks and months ahead. Please subscribe to our blog to receive future updates as new information becomes available. Clients are encouraged to contact us to discuss any concerns about how their businesses may be impacted.