Immigration Law Update: The New Administration, DACA, Enforcement Priorities and Employment-Based Immigration
AuthorsMichael P. Nowlan , James E. Morrison , Thomas K. Ragland
On January 20, 2017, President-elect Donald Trump will be inaugurated as the 45th president of the United States. Because immigration was a pivotal issue in his presidential campaign, many foreign nationals and employers are wondering what changes we can expect in U.S. immigration policy and practice under the new administration.
President-elect Trump's statements on the campaign trail and his "10 Point Plan to Put America First" (the Plan) suggest that his administration will aggressively enforce U.S. immigration laws for those who are unlawfully present in the U.S., and will support changes to existing immigration laws that may impact persons lawfully or unlawfully present in the U.S.
Although we cannot state for certain what changes are to come, the Clark Hill Immigration Team has addressed a few key areas below that we believe are central to our clients. Additionally, we want to remind our clients that we are available and eager to assist in any way we can.
U.S. Law Basics
First and foremost, it is important to remember that our legal system moves slowly and that President-elect Trump, along with the Republican-controlled House of Representatives (House) and Senate, must operate within the bounds of our constitutional framework and established laws. This means that any new immigration laws must go through our legislative process, including debate and approval by both the House and the Senate, prior to being sent to the President for signature or veto. The same is true for amending any existing immigration laws. Because of this lengthy process, we do not anticipate immediate changes to current immigration law.
U.S. regulations are also difficult to change quickly. Regulations are rules that confirm the processes and procedures that must be followed by the agencies responsible for implementing the law. Regulations begin with the federal agency that develops the proposed regulation internally, based on its interpretation and understanding of the law. Once all of the internal parties have agreed on the proposed language, the regulation is sent to the U.S. Office of Management and Budget (OMB) to finalize and edit the draft. Once the draft regulation passes OMB, the American public is given the opportunity to provide notice and comment on the draft. After the notice and comment period ends, OMB sends the regulation back to the agency to review and respond to all comments and edit the regulation. The revised regulation is sent to OMB for final review. Once approved, the regulation is published and typically takes effect within a few months. This process is the same for changing any existing regulations.
Although President-elect Trump will not have the ability to unilaterally create or modify immigration laws or regulations, his administration can effectuate change through the power of executive action, including reversing President Obama's executive actions on immigration, which include Deferred Action for Childhood Arrivals (DACA) and working to limit or eliminate regulations permitting employment authorization for certain H-4 visa holders, F-1 OPT 24 month STEM extensions, among others. See Clark Hill's Immigration Update for more on President Obama's executive actions on immigration.
Below is a summary of some of the changes we expect to see in U.S. immigration policy and practice. The information presented below is not politically slanted, but rather is a statement of what we predict could happen given what we know today.
President-elect Trump has pledged to end the DACA program. The DACA program was announced by President Obama in June 2012 to provide relief from deportation and work authorization to certain undocumented youth who entered the U.S. as children and were educated here. As of June 2016, nearly 750,000 foreign nationals had been granted DACA.
President-elect Trump could terminate the DACA program immediately because DACA was not created by an act of Congress, but was created pursuant to Presidential executive authority. President-elect Trump has not discussed the specifics of how he would wind down the program. Specifically, for example, President-elect Trump has not indicated whether individuals granted deferred action under the DACA program would see their deferred action status revoked, how pending applications would be processed, or how employers would be notified of any changes. If you have questions about the implications of the election for the DACA program, please don't hesitate to contact us.
As an employer, if you employ DACA recipients, we advise that you NOT terminate those employees at this time, as President-elect Trump's administration has not clarified how they will deal with the DACA program or its beneficiaries. As long as an employee holds a valid Employment Authorization Document (EAD), or is otherwise eligible to work, an employer who fires or refuses to hire that individual based on his or her immigration status could face discrimination charges under federal immigration law.
Enforcement Priorities and Interior Enforcement
We anticipate that the election will not impact clients in removal proceedings who are pursuing relief from removal grounded in settled U.S. immigration law, such as Cancellation of Removal for Permanent Residents, Cancellation of Removal for Non-Lawful Permanent Residents, Adjustment of Status, or Asylum. Changes to these forms of relief would require an act of Congress.
However, statements made by President-elect Trump on the campaign trail suggest that there could be changes to interior enforcement of U.S. immigration laws. President-elect Trump has pledged to "move criminal aliens out day one." This is not dissimilar from current U.S. policy, although the President-elect may define "criminal aliens" more broadly than President Obama's Administration has defined them. Before comparing current policy with President-elect Trump's plans, some context may be helpful. It is estimated that there are roughly 11 million undocumented immigrants residing in the U.S. Each year for the past several years, Congress has allocated enough resources to remove roughly 400,000 people from the U.S. President Obama's Administration responded to these resource constraints by issuing a policy directly instructing immigration officials to prioritize the removal of certain individuals over others. According to that policy, immigration enforcement personnel are to prioritize the removal of noncitizens with serious criminal convictions, recent entrants, gang members, suspected terrorists, and abusers of the visa system, among others. President-elect Trump has said that his enforcement priorities will similarly "include removing criminals, gang members, security threats, visa overstays, public charges – that is, those relying on public welfare or straining the safety net, along with […] recent illegal arrivals and overstays."
President-elect Trump's stated approach to interior enforcement differs from President Obama's with respect to individuals who are not enforcement priorities. Under President Obama Administration's policy, such individuals were not to be removed unless their removal furthered an "important federal interest." President-elect Trump appears to not require the advancement of any important federal interest in order to pursue a person's removal. In a speech he gave on immigration, President-elect Trump said, "no one will be immune or exempt from enforcement …. Anyone who has entered the U.S. illegally is subject to deportation[.]"
President-elect Trump's statement that "no one will be immune or exempt from enforcement" suggests that Immigration and Customs Enforcement (ICE) prosecutors will exercise prosecutorial discretion less often under his administration than under current practice. It is foreseeable, for example, that President-elect Trump will discontinue President Obama's policy of administratively closing deportation cases where the noncitizen does not fall within the enforcement priorities.
President-elect Trump has also pledged to triple the number of ICE officers. This will require substantial appropriations from Congress. While the President does have some discretionary spending authority, large projects require congressional approval for funding.
Moreover, President-elect Trump intends to "turn off the jobs magnet," by which it is believed that he means making it more difficult for undocumented foreign national's to work in the U.S. To be clear, it is already against the law to knowingly hire an undocumented foreign national. Employers are required to verify the employment eligibility of new hires by requiring them to complete Form I-9, Employment Eligibility Verification, and provide appropriate documentation. President-elect Trump proposes to mandate the use of the currently optional E-Verify system, an Internet-based system that allows businesses to determine the eligibility of prospective employees to work in the U.S. This change will require an act of Congress.
Finally, President-elect Trump has promised to adopt a biometric entry-exit system to track individuals who enter the U.S. through official ports of entry. Leaders in both parties support this, but U.S. Customs and Border Protection, the agency responsible for enforcing this process, has so far struggled to find a way to implement a biometric entry-exit system in a way that will not result in substantial delays for travelers and will ensure consistency.
NAFTA – The North American Free Trade Agreement (NAFTA) created the TN status to facilitate the movement of workers across the U.S.'s shared borders. TNs are available to foreign nationals who are citizens of Canada or Mexico and will be employed in the U.S. in one of the specific occupational categories listed under NAFTA. President-elect Trump has made statements that he intends to withdraw from NAFTA. As President, he could do this simply by giving six-months' notice to the other signatories to the agreement of his intention to withdraw. It is unclear at this time if he will withdraw from NAFTA or if he will renegotiate the terms of the agreement. If NAFTA ends, it is also unclear at this time what would happen to those Mexican and Canadian citizens who are currently in the U.S. in TN status. For more information on the TN status, visit the Clark Hill TN webpage. For employers employing TN status holders, we advise that you NOT terminate those employees at this time because of the possible changes.
H-1B Visas – U.S. employers frequently use the H-1B visa category to quickly hire foreign nationals. A foreign national generally qualifies for H-1B status if he/she holds at least a U.S. Bachelor's Degree (or equivalent) relevant to the field in which he/she will be working, and the position normally requires at least a Bachelor's Degree as an entry-level requirement to perform the job. President-elect Trump and some members of Congress have proposed a wage floor for H-1B workers and the requirement that U.S. employers test the U.S. labor market through advertising before sponsoring foreign workers. Any changes to the laws governing H-1B visas will require a legislative or regulatory process as described above. For more information on H-1B visas, visit the Clark Hill H-1B webpage.
F-1 OPT – Many foreign nationals who attend school in the U.S. are admitted under an F-1 visa. F-1 students may be permitted to work during or at the conclusion of their studies for a 12-month period by taking advantage of Optional Practical Training (OPT). As of May 10, 2016, pursuant to regulations, students who have attained a degree in a STEM field (science, technology, engineering or math) are eligible for 24 months of additional OPT employment, beyond the usual 12 months of OPT employment, if they work for a qualifying employer. Senator Jefferson Sessions, a key advisor on immigration policy in President-elect Trump's campaign and President-elect Trump's nominee for Attorney General, introduced a bill last year aimed at eliminating OPT, including the 12-month period of work authorization available after earning a U.S. degree, as well as the 24-month STEM OPT period. We expect a similar sentiment when President-elect Trump takes office; however, it is unclear whether this is a top priority. Additionally, regulatory or legislative action will be required to eliminate the OPT program. For more information about OPT, please see the Clark Hill OPT webpage.
The American Immigration Lawyers Association (AILA) has confirmed with United States Citizenship and Immigration Services (USCIS) that they will continue to process all applications, petitions, and requests consistent with current laws and regulations. If you are an employer, and you currently employ a foreign national in one of the categories mentioned above, you should NOT terminate the foreign national's employment solely based on the possible changes mentioned here. At this time, there have been no changes to immigration law or policy and it is still unknown what changes will come.
Clark Hill's Immigration Team will continue to track any changes in immigration law and policy and provide updates to our clients. For questions related to possible changes to U.S. immigration courts, family-based, or humanitarian-based immigration, please contact Thomas Ragland at firstname.lastname@example.org or Patrick Taurel at email@example.com. For questions related to possible changes to employment-based immigration, please contact James Morrison at firstname.lastname@example.org or Michael Nowlan at email@example.com.