Trump is making it harder for Canadians to legally immigrate to the U.S., lawyers say
by Foster LLP, on News
By Daniel Dale, TheStar.com
WASHINGTON—Canadians trying to move to the United States are regularly facing more paperwork, tougher scrutiny and longer waiting times than Canadians did before Donald Trump became president, immigration lawyers in both countries say.
Trump is known for his vocal stands against illegal immigrants, refugees, and immigrants from non-white countries he finds undesirable. At the White House on Thursday, he reportedly asked lawmakers why the U.S. has to accept immigrants from “shithole countries” like Haiti, El Salvador or African nations, instead of taking more from countries like Norway.
In fact, Trump is also making immigration harder for people from wealthy, largely white advanced economies, including America’s northern neighbor.
Trump has not changed the law. Rather, said 12 lawyers contacted by the Star, his skepticism toward immigration of all kinds has produced a change in culture and policy within the bureaucracies that handle immigration cases.
“In many instances the way in which these cases are processed has radically changed,” said Michael Niren, chief executive of Toronto’s VisaPlace.com.
“Every single process is slower than it was a year ago,” said San Diego lawyer Geoffrey Leibl.
“There’s this ‘extreme vetting’ idea that has seeped into the system,” said New York lawyer Andy Semotiuk.
There is not yet public data to provide a comprehensive picture of what is happening. What is certain, though, is that Canadians and others are being forced to jump through more hoops, over a longer period of time, to win approvals.
This shift, lawyers say, has hindered multiple kinds of Canadian applicants. They include skilled professionals being hired by U.S. firms, corporate managers transferring to their companies’ U.S. offices, people getting married to Americans, and people already living in the U.S. and seeking a “green card” for permanent residency.
“We’re seeing more refusals, and often more refusals for small things,” said Nan Berezowski, chair of the Canada chapter of the American Immigration Lawyers Association.
It is not yet possible to say for certain how much longer applications are taking for Canadians. But lawyers say there have been delays in a variety of areas since Trump signed a “Buy American, Hire American” executive order in April telling government agencies to “rigorously enforce and administer the laws governing entry into the United States of workers from abroad.”
Niren said Canadian clients’ applications for employment-based green cards are taking an average of six months longer than they used to, approximately a year instead of six months. Leibl said it now takes nine or 10 months, up from six months, for people to adjust their status to a green card after marrying an American.
Vancouver and Seattle lawyer Duncan Millar said the wait time for business executives trying to adjust to a green card from a company-transfer visa has gone from one year to an expectation of at least two years, though some of the additional delay predates Trump’s inauguration. Several lawyers said waits for the “H-1B” visa for specialty professions have increased by months.
Aside from the delays, there are new challenges in the application process. Perhaps the biggest is a blizzard of paperwork. Lawyers report a dramatic increase in “requests for evidence,” demands for additional documentation, from applicants of all kinds.
“The government’s looking at everything microscopically,” said Buffalo lawyer Rosanna Berardi. “The amount of (requests for evidence) has increased just dramatically across the board. The government is kicking cases back saying, ‘No, no, no, we want more, more, more.’ ”
The U.S. is being particularly demanding, lawyers say, in challenging educated professionals who want to obtain the H-1B, which has been one of Trump’s top immigration targets. Requests for evidence on H-1Bs — more than three-quarters of which go to Indians — jumped 45 per cent in the first half of 2017.
The harshest H-1B scrutiny, lawyers say, has been reserved for professionals not yet getting paid big money. The government is routinely challenging computer science graduates looking to move to the U.S. for entry-level tech jobs, lawyers say, and even sometimes young doctors looking to do a U.S. residency — essentially arguing that their modest starting wages prove that they are not actually working in specialty occupations.
The U.S. government appears to be slower in returning applicants’ passports at Canadian consulates and in providing “advanced parole” travel authorization to green card applicants already in the U.S., stranding them longer in the country where they have applied. For example, Toronto lawyer Kelly Reske-Espineli said, Canadian investors applying for the “E” visa in Toronto are now getting their passports returned in two weeks rather than three days.
The administration has mandated interviews for many of the green card applications where they used to be routinely waived. And it has forbidden lawyers from going to the border with their clients, lawyer Joseph Grasmick noted, to help professionals (like accountants, social workers and librarians) get the “TN” professional status.
The Trump administration has also gotten tougher on people the U.S. has already let into the country.
In the fall, the government issued a rule saying that anyone who gets married to an American within 90 days of entering the U.S. on a non-immigrant visa may be presumed to have misrepresented their intentions when they entered. That presumption of deceit was formerly applied to marriages within a mere 30 days.
On the whole, Canadians are still in a better position to immigrate than residents of any other country. But advocates of cross-border mobility say the Trump-era changes are irrational and overly burdensome when applied to educated, law-abiding applicants from a low-risk neighbour, needlessly harming U.S. companies and families.
“It damages the U.S. economy and it damages the U.S. bilateral relations with our closest neighbours,” said Buffalo and Toronto lawyer Matthew Borowski.
Advocates of reducing immigration say additional vetting is perfectly reasonable, even for valued allies like Canadians. U.S. agencies, they say, adopted an overly relaxed rubber-stamp culture under Barack Obama.
“It was much easier to approve something than to deny it because there was no incentive to deny it. That has clearly changed,” said Matthew O’Brien, director of research for the Federation for American Immigration Reform. “The message has been very clear that enforcement is the primary objective, that protecting the American public is the most significant goal, and that people making enforcement decisions based on the law will be backed up by the chain of command.”
For better or worse, the tightening of the application process may allow Trump to reduce immigration at least marginally without having to go through the trouble of getting new legislation passed.
“It makes employers hesitant,” Reske-Espinelli said. “Which in turn makes Canadians not want to take the chance.”