The election of Donald Trump to the presidency will undoubtedly change immigration processes, and could change immigration laws. While it is too early to know anything for certain, we are carefully monitoring developments and are in touch with national groups who are also following closely, as well as advocating for reasonable results. In addition to evaluating how specific changes could affect each of our clients, we will provide updates on our website on the Davis Brown Immigration and Government Relations Blogs.
It is important to keep in mind that although the election is over, the administration will not change until after the inauguration on January 20, 2017.
President-elect Trump’s transition team is already being assembled for various issues, including immigration. Unfortunately, that team includes people who have expressed the desire to limit immigration.
It is also important to remember that the immigration system is based on a statute (law) that the executive branch (the president) cannot change without Congress’s approval. Additionally, Congress controls the budget. This means that significant allocation of resources (such as for hiring additional enforcement personnel or administrative law judges) would not be possible without an increase in spending approved by Congress.
Regulations control much of the immigration process. Regulations are made through the rulemaking process under the Administrative Procedures Act. Except for rules issued within 60 days of the inauguration, changes to the regulations would have to go through that process. The exact process required for a particular change is something that is often a complex legal decision (which is sometimes litigated), but authority to invoke emergency expedites is available.
Nullifying Executive Orders
Other changes can be made by the Executive Branch (the president and the administrative agencies that administer the immigration process). President-elect Trump has stated that he will nullify all of what he says are President Obama’s “unconstitutional” Executive Orders.
Although we disagree on the constitutionality, this could include the Deferred Action for Child Arrivals or “DACA”. We do not know at this time whether he will do so or when. We also do not know what form a repeal would take. It could mean no more DACA applications going forward, no more renewals, or revocation of DACA status (or work permits) completely. Generally speaking, most administrations have been hesitant to revoke benefits issued even if cutting off future benefits. Please see specific recommendations on DACA below.
Another Executive Order President-elect Trump could decide to nullify is the I-601A provisional waiver filing in the United States. This program allows people subject to the 10-year bar on immigration who are married to U.S. citizens to have the government provisionally adjudicate a waiver of the bar here before proceeding to their home consulate for a visa. If all Executive Orders are nullified, this program will no longer be available.
Other changes could include the internal procedures and processes used by immigration-related agencies. Decisions are made every day about what types of applications to process more quickly or how to interpret regulations. Many of these details are controlled by career staff (those not politically appointed). The tone of the agency and its priorities are set by the Executive and his political appointees.
Mr. Trump includes close to the top of his priorities “removing the more than 2 million criminal aliens” in the U.S. Except for limitations of personnel and budget, increased enforcement is within the discretion of the Executive Branch.
He also mentions “cancel[ling] visas to foreign countries that won’t take [criminal aliens] back.” Some countries do not issue travel documents for the return of removed (deported) individuals from the U.S. (historically, Communist regimes). While not clear, this statement could mean that the U.S. would no longer issue visas to people from those countries.
Additionally, the Executive Branch can decide how or whether to exercise prosecutorial discretion in removal (deportation). Currently, Immigration & Customs Enforcement (“ICE”) has been following guidelines to prioritize certain removals (deportations) of aliens convicted of serious crimes (including drunk driving), and Central American refugees, for example. Additionally, ICE has been instructed to give lower priority to certain persons, such as parents (especially single parents) of U.S. citizen children and those without criminal convictions. It is possible that the priorities currently assigned will change, or that guidance about prosecutorial discretion will be lifted. Additionally, it is possible that the new administration may reverse other discretionary measures, such as administrative closures for removal cases, which result in employment authorization documents (EADs).
Trade Agreements and Immigration
Mr. Trump has stated that he will “announce [his] intention to renegotiate NAFTA or withdraw from the deal” on his first day in office. We do not know what specifics Mr. Trump has in mind in these negotiations. NAFTA has temporary work provisions (TN visa/status and some guidelines about visitor visas/status) that potentially could be affected. Please keep in mind that NAFTA is a long-standing complex treaty that entwines the U.S., Canada and Mexico in many ways.
Mr. Trump also has stated that he will “suspend immigration from terror-prone regions where vetting cannot safely occur.” In the campaign, this point was mostly focused on Syria. At this point we have no idea what “suspension” means or what countries could be affected. While the focus appears to be on those newly arriving, that could change.
Based on information from groups with views similar to people being appointed to the immigration transition team, we are assessing changes that may be considered. The following are our current recommendations based on this limited information. We are reviewing our clients’ cases in light of these recommendations.
Right to Counsel/Due Process:
- All people physically present in the United States have the right to an attorney when being questioned by law enforcement, including ICE or other enforcement agencies related to immigration. The National Immigration Law Center has published extensive Know Your Rights information on its website, as have other groups. We recommend that you review them if you have a concern about encountering law enforcement.
- The same concept applies to businesses employing immigrant workers. If ICE or other law enforcement wants to audit your worksite, we recommend that you call us immediately while the agent is present.
- In most instances, a person must go through several steps before being removed (deported) from the U.S. It is critical that you have legal counsel during this process.
- More coordination between federal, state and local law enforcement will likely be proposed. State and local law enforcement have little expertise on immigration law. It is important to contact legal counsel if you are arrested for any reason. However, you still should report crimes to the police if you are victim. Nothing has changed regarding local law enforcement and we would expect any proposed change to take time to implement.
- In most cases, DACA renewals should be filed as soon as possible if you continue to be eligible. However, we recommend that you consult with us before doing so.
- New DACA applicants must balance the chances of DACA being revoked with the chances that the government will use the information collected to commence removal (deportation) proceedings or other enforcement actions. Again, we recommend consulting an immigration attorney to review the particulars of your situation before deciding.
- DACA is still valid unless revoked. Employment authorization documents (EADs) continue to be valid until specifically revoked.
- TN and TD (dependent) status and visas continue to be valid unless specifically revoked. However, in light of the uncertainty surrounding NAFTA at this time, if you qualify for another status (such as H-1B), you should investigate conversion or other options.
OPT and STEM OPT:
- The new STEM OPT program was largely the result of a lawsuit filed by IT workers who believe the STEM OPT program is taking away job opportunities for U.S. workers. The Obama Administration reissued rules to survive an administrative law challenge. However, the case is still pending and well-known to the people on the president-elect transition team. For this reason, a change or revocation of STEM OPT is possible. Again, we have no idea when or how this could occur. As with other changes, historically a new administration has rarely revoked granted applications. If you qualify for STEM OPT and have not filed, we recommend you do so.
- Regular OPT (usually for 12 months following graduation) is not as much in question. However, a proposal to shorten it to 6 months has been published by one group. Again, if you are eligible and have not filed, we recommend you do so.
- In both instances, we recommend that you contact your designated school official (DSO) for specific advice about your program and that you work with legal counsel in determining your options.
- If you are eligible for an H-4 employment authorization document (EAD) based on your spouse’s immigration progress, we suggest you apply for it now if you have not. This is another program that could end.
Those with pending petitions/applications:
- Many petitions/applications allow the applicant or employer to file an expedite fee (“premium processing”) by paying an additional $1,225. This applies to most I-129s and most I-140s. We recommend considering premium processing in certain circumstances. In some cases, this fee must be paid by the sponsoring employer. In others, the employee may pay it. We are available to discuss whether expediting your case is possible or would be helpful.
Those with applications in process or being considered:
- We are working to file all applications we can as soon as we can. If you have plans to sponsor a relative or an employee, we recommend you start now rather than waiting. If nothing else, this could avoid further fee increases (NOTE: Filing fees will increase per a new rule on December 23, 2016. It is possible that the new administration will increase the fee more.)
- We expect that I-9 compliance audits will increase, as well as the pressure to register for E-Verify. We recommend I-9 training and I-9 audits to be prepared. (NOTE: A new I-9 form was released Monday, Nov. 14, 2016, to be effective January 22, 2017 – more information to follow).
- We also expect that more employers will be investigated for “knowing hire” violations based on past or current employment of persons who are placed in removal proceedings. Please keep in mind that laws against discrimination based on national origin and citizenship status are still in place. It is important to work with both employment and immigration counsel to navigate these laws.
- We also expect more compliance audits of H-1B or other temporary workers, and possibly more PERM compliance audits. We recommend that you review your public access/LCA/PERM files and contact us if you would like assistance with compliance.
Temporary Protected Status:
- While no specific changes have been identified, it is possible that TPS programs will be reviewed and possibly shortened. If you are on TPS and eligible for another status, we recommend you investigate a change of status.
And finally – especially for employers and family members – be prepared to advocate. It is now more important than ever that people who understand the need for and benefit of immigration tell their stories. We would be happy to help you do that as well.