Immigration Law Insights

One of the first things that may come to mind when thinking about the Trump Immigration Plan is the promise to build a Mexican-financed physical wall on the southern border of the United States. While the wall was certainly the President-elect's most publicized immigration stance during the campaign, he has proposed a number of other actions that could directly affect employers. Here is a quick synopsis of five (5) immigration policy changes which could significantly impact U.S. employers.

1. Canceling the Deferred Action Executive Orders (DACA & DAPA)

In June 2012, President Obama signed an executive order initiating a policy known as Deferred Action for Childhood Arrivals ("DACA"). DACA allows certain undocumented aliens who entered the United States as minors to apply for a work permit. Approximately 750,000 people have applied for DACA and received work authorization. In 2014, the Obama administration sought to expand DACA by another executive order and begin a second program giving similar privileges to undocumented parents of U.S. Citizen or Lawful Permanent Resident children ("DAPA"). The 2014 expansion of DACA and introduction of DAPA never went into effect because of a federal court injunction, but the initial DACA program remains intact.

As part of his ten (10) point Immigration Plan, President-elect Trump has vowed to immediately rescind the executive orders associated with DACA and DAPA. Such a move would potentially cause three-quarters of a million people to immediately lose work authorization, and employers would likely be forced to terminate employment and move quickly to deal with potential labor shortages caused by cessation of the DACA program.

1. Uptick in Worksite Enforcement / Expansion of E-Verify

Another area of emphasis for the Trump administration will likely be worksite enforcement. President-elect Trump prioritized jobs for Americans throughout his campaign, which could mean a major "crack-down" on the employment of foreign nationals without work authorization. Shortly after the election, the Department of Homeland Security released an updated version of the Employment Eligibility Verification Form ("Form I-9"). Also, the Obama administration has prioritized "virtual raids" of employer records in I-9 audits which has resulted in millions of dollars of fines for the government. The combination of a new Form I-9 and further executive emphasis on worksite enforcement could mean even greater scrutiny on employer hiring practices. Additionally, President-elect Trump is expected to at least attempt to mandate nationwide E-Verify. While E-Verify is already mandatory in several states including North Carolina, South Carolina and Georgia, the new administration may modify the E-Verify rules already in place. In preparation, employers should consider conducting internal Form I-9 audits and training employees in the recent changes to worksite enforcement rules and regulations.

1. Changes to the H-1B Program

The H-1B visa program is one of the most popular and scrutinized visa classifications used for professionals. In FY 2017, USCIS received nearly 233,000 H-1B petitions for 65,000 available H-1B slots. H-1B visa holders must perform a specialty occupation-typically defined as a position requiring at least a Bachelor's degree in a specific field. The H-1B program has been criticized for adversely affecting the wages of U.S. workers because foreign workers are allegedly willing to accept lower wages in order to obtain authorization to work and live in the United States. However, the H-1B program requires employers to pay H-1B workers at least the market wage for an occupation based upon the geographic market as well as the education, training, and experience required for the job. President-elect Trump has proposed to require H-1B sponsors to pay a higher wage to those seeking H-1B sponsorship. President-elect Trump has also discussed the idea of requiring employers to obtain a certification that no qualified U.S. workers are available for a particular job before H-1B sponsorship would be permitted.

Because any changes to the H-1B program would likely require a notice-and-comment period, employers might consider filing H-1B petitions when the new fiscal year filing period opens on April 1, 2017 to take advantage of the current rules.

1. U.S. Consulate Visa Screening

One of the more highly publicized aspects of President-elect Trump's campaign was a complete ban on permitting Muslims to enter the United States. Since his election, President-elect Trump has sought to clarify his policy, which is now characterized as suspending visa issuance operations at any location where adequate screening cannot occur until proven vetting mechanisms can be implemented. The new administration's focus on more thoroughly vetting foreign nationals during visa appointments means employers will need to ensure employees are well prepared and equipped to answer any questions raised during a consular interview or border crossing. The new policy will also highlight the importance of making sure the documents presented to the embassy or consulate abroad are fully consistent with the documents submitted to United States Citizenship & Immigration Services ("USCIS") when the immigration petition is filed. While President-elect Trump has removed references to Muslims or Islam from his immigration policy, employers should anticipate that employees whom are nationals of traditionally Islamic countries may receive close scrutiny and experience delays during the visa process.

1. TN Visa Abolishment?

President-elect Trump has also been vocal about his desire to renegotiate or withdraw from various trade treaties and agreements. The North American Free Trade Agreement (NAFTA) has been at the center of controversy throughout the Presidential campaign. The TN visa program, which allows Canadian and Mexican citizens to work in certain professional occupations in the United States, is part of NAFTA. If the United States withdrew from NAFTA, the TN visa could end which would abolish work authorization of thousands and force U.S. employers to quickly retain new workers. While full withdrawal from NAFTA seems unlikely, employers will want to carefully monitor any changes to the TN program to ensure they remain compliant with U.S. immigration laws, given the TN visa's similarity to the H-1B visa.

Conclusion

As with all political campaigns, only time will tell how the immigration landscape might change. Continued vigilance, preparation, and communication with immigration counsel will help ensure businesses remain compliant and knowledgeable through the transition period.