President-elect Trump and Immigration: Initial Thoughts

During the election campaign, President-elect Trump put immigration at the center of his agenda and platform and made a commitment to the voters to take immediate steps relating to immigration upon taking office on January 20, 2017.   There are certain immigration-related steps that can be done immediately upon taking office, by executive action, and there are certain steps which require congressional approval. Our office seeks to provide our initial thoughts on what immigration-related changes we may expect during the Trump presidency.

Unlawful Immigrant Community

The sheer volume makes it unlikely (and somewhat impossible) that all of the unlawful immigrants in the United States will be removed.  However,  the President has power to set deportation priorities and it is possible that there may be increased enforcement and removal actions focused on unlawful immigrants who have committed certain crimes or otherwise meet priority criteria.    The current Obama administration uses such criteria so our expectation is that there may be some continuation or refining of these criteria.

Deferred Action for Childhood Arrivals (DACA)/Deferred Action for Parents of Americans (DAPA)

The DACA program is one of the areas where the Trump administration may immediately make a change.   Because DACA was an executive policy, it can easily be overturned by subsequent president.   As a result, DACA recipients who are still subject to deterred deportation, may find that the DACA regulatory protection is no longer there and a DACA recipient may be again subject to deportation proceeding.     A substantial concern in the DACA community has been that DACA applicants have provided extensive information to the government as part of the application process and now the government may use this information against them.     At this time, we do not know if/how this will be the case, but this is certainly a possibility.

The DAPA program never went into effect due to the federal court challenge and we do not expect that there will be an effort to continue it or reinstate it.

NAFTA and TN Visas

Scrapping the NAFTA treaty has been a frequent campaign topic.    The TN visa for Canadian and Mexican citizens was created as part of the NAFTA treaty and if NAFTA trade agreement between the US, Canada and Mexico is scrapped, it is likely that the TN visa may cease to exist.    At this time, we do not have a timeframe for any such action, but we urge TN workers to keep an eye on developments and possibly evaluate alternatives and other visa options.

H-4 EAD

The H-4 Spouse EAD rule has been in existence for about 18 months now but there is a possibility that the Trump administration may seek to reverse or limit this rule in an effort to limit the number of foreign nationals who are eligible for a work authorization.     A similar rule applies to spouses of L-1 workers where – the L-2 EAD work permit rule.

The H-4 Spouse EAD rule has been very successful and popular, especially among certain communities of immigrants and employers, due to its flexibility.   Both the H-4 and L-4 EAD rules are regulation-based which means that each of them can be reversed by a rulemaking process (which can take months to implement).      If the Trump administration takes a proactive approach on finding ways to restrict work authorization for foreign nationals, going after this rule is distinct possibility.

F-1 STEM OPT Rule

Another recent rule which expanded the availability (and duration) of work authorization for foreign nationals is the F-1 STEP OPT extension rule.     The new rule which allowed F-1 foreign students to obtain an additional two years of work authorization is also a possible target of the Trump administration.    The rule did create requirements for employers to use the E-Verify system which is factor which the Trump administration may want to keep.  The rule was created as part of a rulemaking process so it can be reversed (or replaced) within months.

H-1B Visas

The H-1B work visa program has been mentioned during the election campaign but we do not know the exact direction a Trump administration may take.    On one hand, the business community is asking for more flexible H-1B rules and increased H-1B cap numbers, especially in certain fields and for US university graduates.  On the other hand,  there are claims of abuse of the system.      Our expectation is that there may be some tweaks to the program  but we do not anticipate that the H-1B work visa program will be scrapped altogether (or otherwise dramatically changed).

Citizenship

President-elect Trump has discussed imposing some sort of “extreme vetting” to nationals of certain countries or of certain religious origin.    It is possible that this kind of increased vetting may become part of the US citizenship application process which will lead to higher scrutiny, delays and, possibly, denials.    While we have no details on if/how this kind of vetting may be done,  the possibility of increased screening is high.      Likewise, the US naturalization requirements may be changed, making it harder for a number of people to qualify.    It would be prudent for those US permanent residents who are eligible (or will soon be) to apply for US citizenship.   Feel free to contact our office if we can help.

Conclusion

With the election having just concluded, there are very few details as to what the actual priorities of the Trump administration will be with respect to immigration.     We think it is a safe bet, however, that there will be at least some changes to at least some visa programs which would likely make it harder (and not easier) to obtain certain immigration benefits.     We invite employers and individuals who are planning to initiate certain immigration-related steps to consider doing so earlier rather than later.       Our office will monitor very closely developments and we will be providing alerts and updates on our website and newsletter.

Please do not hesitate to contact us if we can review your case, answer any questions or schedule a consultation.   We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.