On November 8, 2016, Donald Trump was elected to become the next President of the United States. Throughout his campaign President-Elect Trump railed against our country’s current immigration policies and promised radical changes – including swift deportation of those who did not enter the country lawfully and were present without status, and the building of a “big beautiful wall” which “Mexico will have to pay for.” In this Immigration Alert, we will outline which of his “policies” are feasible in the short-term and in the long-term. This discussion is limited to immigration issues that will affect employers.
While the President has wide-ranging authority, his powers are limited by the Constitution and he has limited ability to act unilaterally. To enact most major changes, the President requires a willing and functional Congress to pass laws, to ratify actions on treaties, and to fund his executive proposals. While President-Elect Trump has articulated aggressive positions on immigration, economic realities and Congressional discord are likely to limit what he is able to accomplish.
Possible Short-Term Actions
• Reinstating Special Registration for Foreign Nationals Who Are From, or Have Traveled Through, Certain Countries – In the wake of the September 11th terrorist attacks, regulations were promulgated that require foreign nationals who are from, or who had traveled through, certain designated countries, to only enter or exit the U.S. through specific ports and using special procedures (the “NSEERS Program”). Those foreign nationals were also subjected to heightened scrutiny screening (including a lengthy interview), and were subject to ongoing requirements of keeping the Department of Homeland Security (“DHS”) informed of their whereabouts and plans. Under these rules, the DHS can also request that specially registered foreign nationals appear at a designated office to provide additional evidence of their maintaining status on 10 days’ notice. Failure to follow the requirements of the program would make the affected foreign national inadmissible (i.e. unable to return to the U.S., or unable to receive a green card from within the U.S.) and possibly deportable.
In 2011, the DHS determined that this system was redundant, and suspended the program by depopulating the database of foreign nationals who need to register. However, the regulations creating the program are still in place, and President-Elect Trump could reinstate it on short notice.
• Ending Deferred Action for Childhood Arrivals (“DACA”) – President Obama created this program in the Summer of 2012. DACA allows certain undocumented foreign nationals who arrived in the U.S. when they were children under the age of 16 and were under 31 when DACA was enacted, to apply for and receive Deferred Action and to also apply for an Employment Authorization Document (“EAD”) permitting the applicant to work. The applicant must meet certain eligibility requirements, including a criminal background check. The grant of Deferred Action is acknowledgement by the DHS that the applicant does not hold lawful status in the U.S. and that the DHS will defer taking any enforcement action to remove the applicant to his/her home country. An applicant who has been granted DACA relief can renew his/her EAD in two year increments as long as the program exists and as long as the applicant continues to remain eligible.
President-Elect Trump has stated that on his first day in office he will terminate this program. Since the program was created by executive action, President-Elect Trump will be able to unilaterally end it once he assumes office. However, current regulations do not allow the U.S. Citizenship and Immigration Services (“CIS”) to automatically revoke already issued and valid EADs. Instead, CIS must follow a revocation procedure where it provides notice to the affected foreign nationals of its intention to revoke the EAD. The foreign national then has a 15-day period to respond before CIS can issue a final letter notifying the foreign national that the EAD has been formally revoked. A DACA recipient that does not have another pathway to work authorization (such as being in a bona fide marriage to a U.S. citizen) will eventually lose employment authorization. The only saving grace is that the notice requirement will at least give the foreign national, as well as the employer, a period of at least a few weeks to plan for and orchestrate the foreign national’s exit from the company.
Since DACA was created, over 840,000 foreign nationals have applied for and received EADs under the program. Issuing such a high number of revocation notices will be time consuming and expensive. As a result, it is possible that President-Elect Trump will decide to end the program going forward and let the EADs run their course. However, given his strong rhetoric, employers should not plan on this happening. It is also possible that a legal challenge to any action on his part will block the revocation for a period of time.
• Ending Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) – In 2014, President Obama attempted to create a similar program to DACA for the undocumented parents of children who are U.S. citizens or have green cards. However, a federal district court issued a restraining order preventing President Obama from implementing the program. This past summer, the Supreme Court issued a 4-4 split decision that did not declare that President Obama’s actions were unconstitutional but left the restraining order in place. We expect that President-Elect Trump will end this proposed program and discontinue defending the lawsuit.
• Suspending Issuance of Visas and Barring Foreign Nationals from Entering the United States – President-Elect Trump has made repeated statements about halting the flow of immigration, in particular: (i) that he will temporarily suspend immigration from regions that “export terrorism,” including in particular Syria, Iraq and Libya, (ii) that he will put in place an ideological screening test (called “extreme vetting”) to ensure that the foreign nationals “share our values and love our people,” and (iii) that he will call for a temporary and total ban on the entry of Muslims into the United States.
Immigration law allows the President to block the entry of any group of foreign nationals whom he deems will be “detrimental” to the interests of the United States. He cannot, however, deport members of the blocked group merely because of their membership. Current regulations only allow already issued visas to be revoked under limited circumstances, mostly in the situation of fraud or mistake.
President-Elect Trump’s first statement regarding nationals of Iraq, Libya, and other countries in conflict may be do-able, though as stated above, he cannot deport those foreign nationals who are already in the United States. One option available to the President-Elect would be to reinstate the NSEERS program discussed above and apply it to nationals of those countries. His second and third statements are more complex and, because they would change admission rules more broadly, likely would require regulatory or statutory amendment, both of which are lengthy processes. We also suspect that any of the actions described above will be subjected to legal challenge, with each of the points in order having stronger arguments that they are unconstitutional or exceed his authority without Congressional approval.
Finally, there is the reminder that we live in a global economy and that immigration policies that we enact to abridge the entry of other country’s citizens will likely be met with similar restriction on U.S. citizens and U.S. companies seeking to or doing business in those countries. Many U.S. companies that are important to our economy have substantial business interests in the regions that President-Elect Trump’s policies would affect and they would be quick to put pressure on the President to end his proposals if they harm their entry or position in these countries’ markets
Possible Longer-Term Actions
• Renegotiating Treaties and Trade Agreements – President-Elect Trump has stated that he will terminate and/or renegotiate a number of treaties and trade agreements. However, most treaties and trade agreements cannot be unilaterally revoked by the President without prior Senate approval. Some treaties and trade agreements contain withdrawal clauses, which Mr. Trump could trigger. However, there is usually a notice period of at least several months before the U.S. could withdraw. Economic analysis of his proposals to terminate treaties or trade agreements suggest that the potential for trade wars, increased costs of goods, and impediments to doing business overseas could have a significant negative impact on the U.S. economy. Additionally, any treaties and trade agreements which replace existing ones will commonly require ratification by Congress, which means that President-Elect Trump is going to need to compromise.
President-Elect Trump has focused much of his criticism on the North American Free Trade Agreement (“NAFTA”), through to which the TN visa program for Canadian and Mexican nationals operates. Were President-Elect Trump to end or re-negotiate NAFTA, that could eliminate or change the TN visa option. Similar visas exist through the H-1B1 visa program (with Chile and Singapore), and the E-3 visa program (with Australia). Given President-Elect Trump’s hostile rhetoric in particular to NAFTA, employers with TN workers may want to take affirmative steps to move them into another working visa, like the H-1B.
• Restricting Opportunities for Highly Skilled Foreign Workers – President-Elect Trump has made inconsistent statements regarding visa programs for highly-skilled workers, including in particular H-1B visas, STEM students, and spousal EADs. Any program replacing them will take months or more than a year to implement either through notice and comment rulemaking or Congress writing and passing new laws. President-Elect Trump’s businesses specifically, as well as many U.S. businesses in general, have benefited from these programs, so we expect that programs to survive largely intact, though possibly with heightened restrictions placed on them in the coming years that will make them less appealing or useful.