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Additional Details of President-Elect Trump’s Immigration Policies Emerge in the Week Following His Election

15 Nov

It has now been a week since President-elect Donald Trump won the presidential election. While there is still a great deal of uncertainty surrounding the specifics of President-elect Trump’s immigration policy, new details have emerged post-election that appear to soften his campaign rhetoric and controversial campaign promises related to immigration. His most recent statements on immigration paint a more nuanced picture of President-elect Trump’s immigration policy, which may continue to evolve as he assembles a team of advisors and Cabinet members that will make up the Trump Administration.

Removing 11 Million Undocumented Immigrants

Even prior to the election President-elect Trump had begun to reveal additional details regarding his commitment to deport the estimated 11 million undocumented immigrants in the United States. Since the election he has offered clarifications that affirm a commitment to prioritize removal of what he estimates to be 2-3 million criminal aliens in the United States, a position that is similar to current and prior Administrations. Proceeding with removal (deportation) of all criminal aliens present in the United States within the initially projected one-year target would require additional resources and may require a change in law that would remove some forms of relief currently available in removal proceedings.

Building a Wall on the Southern Border

As predicted in the Foster post-election blog on November 9th, new details have begun to emerge regarding President-elect Trump’s commitment to strengthening the southern border by building a wall. In a recent interview, President-elect Trump has indicated that there may be a fence, electronic monitoring, and more patrolling, but that there are at least some sections where a wall is more appropriate. This nuanced statement concerning a wall suggests that President-elect Trump might use a variety of options to fulfill his commitment to strengthen the border without necessarily resorting to miles upon miles of walls.

DACA/DAPA

President-elect Trump has pledged to rescind President Obama’s immigration-related executive orders, the most well-known of which is the Deferred Action for Childhood Arrivals (DACA) program that affords temporary work authorization and protection from removal to thousands of undocumented children and young adults who were brought to the United States as children. Deferred action under DACA is not a lawful status but a formal deferral of enforcement action. This group has been known as “DREAMers,” named after the DREAM Act that was introduced in 2001, just prior to 9/11. Congress ultimately did not pass the DREAM Act in 2001, and various efforts to pass it in the years since have also failed.

Though the President-elect’s position on DACA may further evolve, currently it seems likely that his Administration will end the program. While most analysts believe President-elect Trump will move forward with rescinding DACA, it remains unclear whether the program would simply be cancelled prospectively, which would mean no further renewals of the temporary work authorization, or whether existing work authorization documents would be cancelled and revoked as well, which would abruptly end program benefits already granted. For those employers who employ workers with employment authorization based on DACA, rescission of the DACA program may mean that they lose valuable employees once the employees’ existing work authorization expires.

There are also growing concerns that the Trump Administration may utilize the personal information gathered by USCIS on DACA participants to initiate removal proceedings against them. President-elect Trump recently indicated that priority must be placed on removing from the United States criminal aliens, which he estimates to number between 2-3 million. By definition such an enforcement priority would not include DREAMers who were vetted and approved under the DACA program, though DACA recipients presumably would no longer be able to renew their work authorization or benefit from the peace of mind of knowing they will not be targeted for removal from the United States.

DAPA, or Deferred Action for Parental Accountability, a program similar to DACA that would have afforded temporary work authorization and protection from removal to millions of undocumented parents of U.S. citizens or lawful permanent residents, is currently subject to a Federal court injunction. The Trump Administration is unlikely to continue defending DAPA in Federal court. As a result, DAPA simply will not be implemented absent Congressional action.

H-1B Visas

The impact a Trump Administration might have on business and employment-based immigration is less clear. President-elect Trump has expressed both criticism and pragmatism when discussing employment-based visas, particularly the H-1B visa. The Trump Administration may seek Congressional action to change the framework supporting H-1B, L-1, or other employment-based visas by adding new statutory restrictions, limitations, U.S. recruitment requirements, or heavy filing fees. It is also possible that the Trump Administration could implement certain changes to existing regulations or issue new guidance on their enforcement without seeking to significantly change overall program requirements.

TN Visas

One visa category in particular, the TN visa, may be uniquely vulnerable. The TN visa category derives from the North America Free Trade Agreement (NAFTA) between the United States and Canada and Mexico, a treaty that President-elect Trump has criticized as being bad for U.S. workers. A withdrawal from NAFTA would effectively eliminate the NAFTA Professional (TN) classification for Mexican and Canadian citizens. Presumably it would also abrogate reciprocal provisions Canada and Mexico afford to U.S. workers traveling to Canada or Mexico to engage in temporary work or professional activity.

Banning Entry of Muslims into the United States

One of the most controversial of President-elect Trump’s campaign statements was his call for a ban on Muslims entering the United States. While originally stated as a total ban on all Muslims, President-elect Trump subsequently called instead for the suspension of visa issuance for residents of any country for which his administration determines that adequate background and security screening cannot occur. He has recently articulated the concept of “extreme vetting.” Currently it is unclear what “extreme vetting” might entail in addition to existing government background checks in the refugee screening and visa application process. Presumably any proposed ban would be limited to only those countries where such additional vetting is not possible. Should such a ban occur, it might have serious consequences for employer-sponsored nonimmigrant visa holders from the affected countries. It is also possible that the additional vetting may lengthen the visa application process.

At this early time immediately after the election it is still unclear exactly what posture the new administration will take with regard to the existing immigration system, and the actual legislative, regulatory, enforcement, and discretionary tools which might be used to change it. It is realistic to anticipate changes that would bring the U.S. immigration system closer to President-elect Trump’s vision, a vision which may continue to evolve. While some changes are expected to be immediate, those that might greatly impact U.S. businesses are more likely to come at a slower pace than those impacting individual visa applicants, undocumented immigrants and their families.

Foster LLP will continue to monitor potential and actual changes to the U.S. immigration system and will provide additional information, as well as thoughtful analysis, in future Immigration Updates© and on our firm’s website at www.fosterglobal.com.