The Impact of the U.S. Presidential Election on High-Skilled Immigration

On November 8, Donald Trump defeated former Secretary of State Hillary Clinton in the U.S. presidential election. While Mr. Trump will not be sworn in as President until January 20, 2017, immigration is expected to be a key issue in Mr. Trump’s administration. Though he has at times voiced some support for high-skilled immigration, Mr. Trump often criticized the H-1B program while on the campaign trail. He has called for more vetting of foreign nationals entering the United States, curbs on foreign worker admissions, and increased obligations on employers of foreign workers.

What are Mr. Trump’s views on immigration?

Mr. Trump’s position paper on immigration supports selecting immigrants based on merit, skills, and likelihood of success in the United States. At the same time, he has called for immigration controls that would prioritize the hiring of U.S. workers over non-citizens. He has also advocated for reform of the H-1B program, although he has not yet made specific proposals.

He has frequently indicated that he will seek to renegotiate or withdraw from key trade agreements such as NAFTA, many of which contain provisions to facilitate immigration between the United States and its trade partners.

Mr. Trump has called for more stringent screening of applicants for visas and green cards, which would include applicants for employment-based nonimmigrant visas and permanent residence. He has stated that he supports a moratorium on visa issuance for foreign nationals in countries where adequate screening cannot be guaranteed.

It is therefore expected that Mr. Trump’s administration will seek to modify some policies affecting high-skilled immigrants. The content, implementation, and legality of such changes are all unknown now.

What are the likely immigration changes to expect under a Trump administration?

With unified control of the White House and both the House of Representatives and the Senate (for at least the next 2 years), the Republican Party has an opportunity to more easily pass new immigration legislation. While the initial focus areas in 2017 will likely be healthcare, tax, and entitlement programs, immigration reform was central to the Mr. Trump’s campaign, with his platform including policies such as:

  • Restricting the H-1B program by making the program costlier for employers, specifically by increasing H-1B prevailing wages and implementing other regulatory restrictions;
  • Pausing employment-based green card processing;
  • Eliminating the J-1 visa program;
  • Banning nationals from certain countries such as Syria and Libya from entering the U.S. (and possibly a broader ban of all Muslims) until vetting mechanisms are in place;
  • Building a wall across the southern border and requiring that Mexico pay for the wall;
  • Tripling the number of U.S. Immigration and Customs Enforcement (ICE) officers and detaining foreigners apprehended crossing the border;
  • Ensuring that there is no path to legal status for undocumented migrants currently in the U.S. (including beneficiaries of DACA, Deferred Action for Childhood Arrivals);
  • Prioritizing any immigrant with a criminal history for deportation.

Of course, any of these proposals are likely to face significant financial, logistical, and legal challenges. We also expect that Mr. Trump will appoint a new Secretary of Homeland Security early in his term. Who he chooses will provide important clues on what to expect in terms of the timing and magnitude of any future immigration reforms.

How easily can a new administration change U.S. immigration laws?

There are essentially three ways to change immigration laws:

  1. Executive Orders, policies, and interpretations of law: The President can use one or a combination of these means to impose new changes and reverse current programs and policies, including overturning programs such as Deferred Action for Childhood Arrivals (DACA); broadening prosecutorial discretion regarding which individuals should be placed into deportation proceedings; promoting a culture of more vigilant enforcement; and otherwise promoting policies and interpretation of immigration laws that would disadvantage immigrants.
  2. Immigration regulations: The President can also change immigration regulations, but not quite so easily. While regulatory changes do not require the approval of Congress and can be done by the executive branch, regulatory changes require the formal proposal of new regulations, a formal public comment period and, ultimately, the issuance of a final version of the new regulations. As this process takes some time, current regulations regarding STEM OPT, for example, would be unlikely to change immediately.
  3. Immigration statutes: Any changes to immigration statutes or laws must first be debated and passed through both the House of Representatives and the Senate before finally being signed into law by the President. This is a lengthy path that is likely to be used only for significant proposed changes to immigration laws, such as comprehensive immigration reform, changes to the naturalization system, changes to the H-1B visa or green card numbers, or changes to the available types of employment-based visas.

What type of actions should employers and foreign workers take now?

H-1B Visas:

  • It is possible that the H-1B category may become more restrictive under the new administration. For example, Mr. Trump has stated that he is in favor of controlling the admission of new foreign workers and promoting a “hire Americans first” policy by (among other things) increasing required wages for H-1B employees. While the business and technology community generally favors increasing H-1B visa numbers, the current prevailing sentiment from the new administration is anti-globalization and hiring Americans first, both values that would probably restrict the H-1B category, rather than expand it. In any event, we expect that there likely will not be sufficient time for the new administration to make significant changes to the H-1B program before the lottery period opens on April 1, 2017. However, with the prospect of restrictions to the H-1B program looming, employers may want to file H-1B cap petitions for any eligible candidates in 2017, rather than waiting for a future year.
  • For current H-1B employees, we recommend that employers file H-1B extensions as early as possible, ideally 6 months before the employee’s current H-1B expiration date. This approach may also be advantageous if H-1B filing fees are increased or if the H-1B program becomes more restrictive.

Visas Based on International Trade Treaties:

  • If trade treaties such as NAFTA are renegotiated, as Mr. Trump has indicated he will aim to do once in office, free trade visas such as TNs for Mexicans and Canadians, E-3s for Australians, and H-1B1s for Singaporeans and Chileans could be restricted or even eliminated. Employers may want to consider filing H-1B cap petitions for such employees in 2017. Another strategy might be to commence the green card process simultaneously for such employees, as in many cases that process can be concluded in 18 months or less.

Moving Employees to “Higher Ground”:

  • Although many of the Mr. Trump’s immigration proposals will require an act of Congress or a formal regulatory change that could take many months or years, there are some changes that he could make relatively soon after taking office on January 20, 2017. We recommend that foreign nationals attempt to move to a more stable immigration status as soon as possible. These actions might include:
    • Applying for a work visa: Employees who are working under Optional Practical Training (OPT) should apply for H-1B work visas or another type of work visa as soon as possible.
    • Applying for Lawful Permanent Residence: Employees with temporary work visas or student visas should apply for Lawful Permanent Residence (a “green card”) as soon as possible.
    • Applying for naturalization: Lawful Permanent Residents (green card holders) who are eligible for naturalization should apply as soon as possible.
    • Avoiding unnecessary international travel: Individuals with temporary visas should avoid international travel after January 20, 2017, until it is known whether the new administration will implement additional nationality-based restrictions on visa issuance and admissibility.

Please note that if one filed today for Lawful Permanent Residence or naturalization, it would be highly unlikely to receive a decision from the U.S. government until after Mr. Trump has taken office. Nevertheless, becoming a permanent resident or a citizen substantially increases one’s security to live in the United States. Individuals with a criminal history of any kind, who have ever filed incomplete or inaccurate immigration or visa papers in the past, or who entered the U.S. without permission should consult with an immigration attorney before filing any paperwork.

More Stringent Immigration Screenings:

  • Trump has discussed acting to “suspend immigration from terror problem regions” and implement “extreme vetting” of certain immigrants to the United States. This could take place through a program that would track and monitor immigrants traveling to the United States from countries deemed “high-risk.” Although it is uncertain exactly how this program will unfold, Mr. Trump’s plan could possibly have similarities to the NSEERS (National Security Entry-Exit Registration System) program that was temporarily implemented in the United Sates after the terrorist attacks on September 11, 2001. NSEERS affected nonimmigrants from 25 mostly Middle Eastern or Muslim countries, and required initial registration, fingerprinting, photographs, and an interview at the time of entry to the U.S. The program also required monthly or yearly check-ins for certain nonimmigrants.
  • If Mr. Trump tightens the security screening process for nonimmigrants from certain countries, this may result in delays during the visa issuance process. While it remains unknown if the new administration would re-institute a program such as NSEERS, it may be wise for foreign workers to avoid unnecessary international travel after January 20, 2017, especially if they are from countries currently deemed “high risk,” such as Syria, Yemen, or Iran.

Individuals in Same-Sex Marriages:

  • The Supreme Court issued two landmark decisions recognizing the rights of same-sex couples to marry in 2013 and 2015. While the Supreme Court occasionally overrules itself, it does so sparingly and generally only after a very long time has passed. The law is very strong that if a marriage is valid when entered, it cannot be invalidated by any subsequent change in the law. Couples who are already married should not be concerned that their marriages can be taken away. Still, with at least one position open on the Supreme Court, and many more positions open in the federal judiciary, Mr. Trump will likely be able to nominate very conservative judges. Even if this is the case, sponsorship of a same-sex spouse for immigration benefits should remain an option.

Deferred Action for Childhood Arrivals (DACA):

  • Deferred Action for Childhood Arrivals (DACA) is a program created by President Obama in 2012. “Deferred action” has been a tool that many presidents, both Democrats and Republicans, have used to prevent certain immigrants from being deported. Through an Executive Order, President Obama began a form of blanket eligibility of deferred action for immigrant children brought to the U.S. when they were very young. Mr. Trump indicated during his campaign that he would rescind DACA. Mr. Trump could cancel DACA as early as his first day in office and rescind the work authorization of those who currently have deferred action. Or, he could cancel the program, but allow those with DACA to continue with their status until it expires. Because there are multiple possible scenarios, individuals with DACA or who are considering applying for DACA should consult with an immigration attorney, as well as to determine other possible immigration options.

More Stringent Treatment of Immigrants with Criminal Issues:

  • If Mr. Trump changes the treatment of immigrants with criminal convictions, any noncitizen who has ever had a negative interaction with law enforcement should consult with an immigration attorney before filing any kind of immigration paperwork. This is especially so if the individual has ever been convicted, fined, arrested, or detained.

Global Immigration:

  • Trump has stated that he will halt free trade and globalization, which could motivate foreign nationals or U.S. businesses to leave the United States for countries that are more stable. As an immigration firm with a vibrant global immigration practice, McCown & Evans invites inquiries from clients with an interest to explore immigration options outside of the United States.

McCown & Evans, along with the American Immigration Lawyers Association (an international association of immigration lawyers with over 10,000 members) and other organizations across the country, will continue to advocate for immigrant rights. It will be critical for us to humanize these issues and attempt to persuade the Trump administration that restrictions on immigration such as those discussed above would be unfair and unduly burdensome to U.S. employers and their employees. Please contact your attorney at McCown & Evans to discuss ways in which your company may be able to positively impact the dialogue on immigration.

We will closely follow the development of immigration legislation and policy in the new administration, and will issue further updates as changes occur. If you have questions, please contact your McCown & Evans attorney or send an email to info@mccownevans.com.