President-Elect Trump says, “We’re going to look very strongly at immigration.” Immigration and border security were cornerstone issues of his campaign. The Republicans have majorities in the Senate and the House, and he has the ability to appoint at least one Supreme Court judge immediately. The path seems pretty clear for major immigration reforms.
We’ve been receiving client queries, understandably concerned. I think we have to anticipate some pretty big changes, most of which will restrict immigration. Some of these changes may come very early in the administration, while others will take some time.
Here are a few thoughts:
• The Deferred Action for Childhood Arrivals (DACA) program is in jeopardy. This is a program created by the Obama administration without Congressional approval. Trump has threatened to undo many executive orders, and this program will receive scrutiny. Each case has to be evaluated on its own, but non-profit organizations which we respect are advising, generally, to not file new cases for DACA benefits, not travel on advance parole, and consider renewal applications on a case-by-case basis.
• NAFTA TN categories may receive new scrutiny. Trump was very, very critical of NAFTA during his campaign. NAFTA includes provisions for the TN work authorization for certain professions. There is some discussion among experts that even if NAFTA is scrapped, a Canadian Trade Agreement would be possible. Canada has already expressed interest in re-negotiations and improving the terms of the trade deal. From my perspective, there is much room to improve upon the TN schedule of professions, but HR departments and employers would be harmed by doing away with the category. For example, lots of hospitals take advantage of the RN category.
• Expect changes to the H-1B Specialty Occupation program. Trump’s team of advisors have been critical of this program for a long time. I imagine they’ll raise filing fees and/or cut quota numbers; heighten compliance measures; and perhaps introduce a soft labor market test. It might take some time to do this, but legislation of this sort is already drafted.
• Executive Orders issued concerning immigration may be stricken on “Day 1,” according to Trump. Countervailing order may be issued in some cases.
• There will likely be proposals to revise the immigrant visa quota system, with a greater emphasis on merit and employment based immigration, as opposed to family-based immigration.
• Some sort of wall on the southern border will be proposed. A hallmark of Trump’s campaign was that he would build a wall, and Mexico would pay for it. Cost of the border security measures will be the issue, and it will likely be cash-grab for defense contractors.
• A repeal of the Affordable Care Act may impact some immigrants. Any extension of government aid to immigrants will likely be curtailed.
• Electronic work authorization verification (E.g. E-Verify) will be first encouraged, perhaps through incentives, and required after legislation passes.
• Various temporary work authorization programs may be limited or cut (e.g. Temporary Protected Status, H-4 work authorization, temporary work authorization while applications are pending). Regulations related to these programs may be changed relatively quickly via emergency processes.
• Immigration Court proceedings may be streamlined, as far as the administration can get away with, similar to how things were after 9/11.
• Many immigrant advocacy groups are publishing advisories. We like the Northwest Immigrant Rights Project and their work. The National Immigration Law Center is another good organization.
• Senator Mitch McConnell said this week that immigration discussions will be conducted behind closed doors, and then presumably pushed through Congress. The Center for Immigration Studies is a well-known think-tank in favor of reducing immigration, and has published various ideas on how to do so. They have been waiting a long time to help re-write U.S. immigration law, and this seems to be their time.
U.S. immigration is what we do. We will of course be following developments closely, periodically posting here, and writing and speaking elsewhere on the subject. Now is a time when employers really want to pay close attention to potential changes in the law, and make themselves heard when necessary. Changes will have both intended and unintended consequences, and may come fast. Now is also a time to consider whether employer compliance with immigration law is in good shape. We can help.