By Robert F. Loughran
29 April 2017 marked the 100th day of Donald J. Trump’s presidency, the period in US politics that sets the tone for the remainder of his four-year term. Although President Trump attempted to push through other measures, US immigration policy appeared to be the focus of the first one hundred days.
Initial Presidential Executive Orders and the Travel Ban
On 25 January 2017, President Trump began by signing two executive orders focusing on border security and interior immigration enforcement, having an immediate impact on the interpretation and enforcement of US immigration law. These orders related to policies that the president campaigned on, including the building of a wall along the US border with Mexico, the abolishment of “sanctuary cities”, and the removal of undocumented immigrants from the US. Coming less than a week after President Trump’s inauguration, these orders set the enforcement tone of the new administration’s immigration policy.
Two days later on 27 January 2017, President Trump issued a third executive order entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.” Although further clarified, enjoined by US courts from enforcement, and subsequently abandoned by the Trump Administration, the order would have restricted travel to the US by foreign nationals, including US lawful permanent residents, from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen. The order also would have suspended immigration benefits to refugees and eliminated the limited exceptions to the interview requirement during the visa process. A revised version of this executive order was issued on 6 March 2017, but US courts similarly enjoined its enforcement, and it should remain unimplemented due to litigation for months, if not years, to come.
Increased Scrutiny at US Consulates and Ports of Entry
Following the injunction on enforcement of President Trump’s revised travel ban, US Secretary of State, Rex Tillerson, issued diplomatic cables on 17 March 2017 to direct all US consular posts to increase scrutiny of visa applications and applicants themselves for security threats. US Consular Officers are expected to ask more detailed questions about the applicants’ background. US Consular
Officers also are required to refer applicants to the Fraud Prevention Unit for mandatory social media history checks if applicants were present in an area at the time it was controlled by the “Islamic State” (ISIS) or if the officer determines that an applicant may have ties to ISIS or other terrorist groups. This directive has caused a slowdown in visa issuance and an increase in visa denials.
Once issued a visa or traveling without a visa under the US Electronic System for Travel Authorization (ESTA) programme, US Customs and Border Protection (CBP) has been reported to have increased scrutiny and raised usual lines of questioning, specifically for business travelers and those entering on a US work visa. Travelers under the Visa Waiver Program should be prepared for questioning if a CBP Immigration Inspector determines that they have not been previously interviewed and sufficiently vetted prior to travel.
Recent “Buy American and Hire American” Executive Order Targets H-18 Program Abuse
On 18 April 2017, President Trump signed the “Buy American and Hire American” Executive Order, which set forth his administration’s policy to “maximize … the use of goods, products, and materials produced in the United States” and to “rigorously enforce and administer the laws governing entry into the United States of workers from abroad.”
The “Hire American» portion of the order called on the US Secretaries of State, Labor and Homeland Security, and the Attorney General to “propose new rules and issue new guidance to supersede or revise previous rules and guidance if appropriate, to protect the interests of US workers in the administration of our immigration system, including through the prevention of fraud or abuse.” Specifically, the agencies are directed to “suggest reforms to help ensure that H-1B Specialty Occupation Nonimmigrant Visas are awarded to the most-skilled or highest paid petition beneficiaries.”
While stating the broad policy and directives to the agencies, the order does not set forth specific ideas or proposed actions to further the policy. Regulatory action might include a change in administration of the annual H-1B quota to favor petitions that offer the highest salaries or are filed for those with advanced degrees. The US Immigration & Nationality Act provides that the H-1B quota numbers are to be allocated “in the order in which petitions are filed for such visas, and current regulations award H-1B visas under the annual quota by random selection, which is referred to as an annual April “lottery.” President Trump has criticized this process and preferred movement to a merit-based allocation system based on highest wages or highest education or skill level.
In addition to directing agencies to consider changes in the H-1 B lottery system, the Executive Order also called for rigorous enforcement of immigration laws. Immigration attorneys have already seen an increase in the rate of Requests for Further Evidence issued by US Citizenship & Immigration Services (CIS). Such requests challenge the nature of the position offered – whether it is a “specialty occupation” that normally requires a bachelor’s degree or higher in a specific specialty field- and question the individual’s qualification for employment in the specific specialty field. Specific areas of scrutiny will be entry-level computer programmers and analysts, as well as staffing companies and foreign workers involved in “third party placement,” which is when the usual place of activity is at a client site rather than the employer’s premises. This trend is likely to continue as CIS and other agencies move forward in implementation of the new Administration’s enforcement-driven policies.