There is no doubt in anyone’s mind that immigration policy has been a core issue for President-Elect Trump. So, what can we expect, as a practical matter?
Not Before January 21
We first must remind ourselves that President-Elect Trump does not become president until January 20, 2017. As President-Elect Trump puts together his administration in the coming weeks, we will better understand what his priorities are, and what first steps he will take.
Before that, we cannot expect very much, as whatever initiatives Congress may have contemplated, it is clear from what we hear, they are now off the table.
The only piece of business relating to immigration will be those immigration provisions that sunset on December 9, which it appears will be renewed, without change for an additional several months so that underlying issues could be more fully addressed by the next administration. This includes the EB-5 program, Conrad 20, and the Religious Workers provision.
Practical Realities: Policy; Regulations; Legislation
When looking at the first six months, it is important to keep in mind that those initiatives of his, which are a matter of policy and Executive Order, can be initiated relatively quickly and simply, whereas those that require publication of new regulations follow procedures which can take a significant amount of time, and of course, those that require legislation, involve congressional processes which are complicated in nature, and perhaps are not so easy to achieve, even with Republicans controlling both the Senate and the House.
President-Elect Trump Initiative: Protecting Our Borders
As president, Trump is pretty limited in what he can do to “build a wall”, or in other ways increase border security, without congressional action. Clearly, however, that is a high priority and will be a first initiative of the new President.
In all likelihood, he will have as a priority, improving the “entry – exit” system, as our control and tracking of who arrives in the United States and who departs, while having improved over the years, still has a long way to go.
President-Elect Trump Initiative: Internal Enforcement
Managing and enforcing removal in the context of our current policies, is the area where he can have the greatest immediate impact. There seems to be little doubt in anyone’s minds that President-Elect Trump would quickly rescind President Obama’s Executive Orders, which created the DACA and DAPA programs, allowing certain undocumented aliens with significant long-term ties to the United States to apply for employment authorization. In addition, we can assume that he will seek out every creative way to allocate additional resources within the current budget to increase removals and deportations not limited just to criminals.
Legislation would be required to implement a mandatory program of E-Verify, which requires companies to verify information received when checking the credentials of new hires, with government data bases at the Social Security Administration and the Department of Homeland Security. No statutory change would be required to increase I-9 audits and company raids, but here, decisions would have to be made as well, with regard to allocation of currently available resources.
President-Elect Trump Initiative: Legal Immigration
It is believed that President-Elect Trump has an interest in fixing legal immigration, but there isn’t a sense that this would in any way, be a priority. It is also safe to conclude, that in the course of any attention to legal immigration, there will be a focus on what is perceived as protecting the American market, by making it more difficult to obtain non-immigrant work visas, under the L-1 and H-1 visa categories. This might be addressed through regulation with reference to fees associated with these categories; strict wage requirements, and/or addressing the cap on any visa category in a restrictive way. New regulations and statutory changes would be required.
Another more subtle or more nuanced impact might very well be, that those who make discretionary decisions within the government agencies, and who are inclined to be restrictionists would feel themselves empowered to exercise their discretion in adjudicating applications, deciding upon admission to the United States, and granting benefits, to exercise their discretion in a restrictive way, and when a case is marginal, or perhaps not even so marginal, decide to deny.
Bottom Line: The First Six Months
So what will January through June look like, as far as immigration is concerned, I think we will very quickly see rescission of President Obama’s Executive Orders, once the Trump Administration has worked out the practical implications, and perhaps some change in enforcement activity with regard to audits, company raids, and removal.
I would expect to see congressional initiatives with regard to “the wall” and E-Verify, perhaps to be completed within the first session of congress, but perhaps not. Perhaps an initiative will be started with regard to H-1 visas and others, but it’s not likely that there will be significant changes.
So, at the end of the day, the most vulnerable populations, the undocumented and their families, even those who have been here for many years, may be very much at risk.
The business community will find it more difficult and challenging to move forward with necessary visa processes, as will their employees, but processes, procedures and eligibility will probably remain essentially the same for the foreseeable future.