More than 10 days have passed since the election results were
revealed, and the United States now has a businessman as its
president-elect ready to take office on January 20, 2017. However,
despite his business background, it appears that the Trump
administration will be equally hard on legal business immigration
as on illegal immigration. President-elect Trump's campaign
speeches and his position paper on immigration shed light on how
his vision regarding immigration will impact employers with a
foreign national workforce. Below are some of the pertinent
temporary work visas, inspections procedures and immigration
control practices that may be impacted when the Trump
administration is in place, as well as a brief discussion about the
longer delays expected for foreign workers traveling to the United
States for short-term business reasons or to work and study.
F-1 Students and Optional Practical Training (OPT )
President-elect Trump has called for more stringent vetting of
foreign nationals seeking to enter on either temporary work or
student visas, or those seeking green cards. In addition, he wants
to suspend the issuance of visas from countries where there is no
screening process until proven and effective vetting mechanisms are
implemented, particularly from regions that export terrorism. Given
this possible delay or suspension, it is key for foreigners seeking
to work or study in the United States to apply for the F-1 student
visa before the new administration is in place. Further, there is a
strong possibility that the generous regulations extending OPT to
students in the STEM (science, technology, engineering and
mathematics) disciplines be repealed or scaled back considerably.
This is due to the Trump administration's call for new
immigration controls that would boost wages and ensure open jobs
are offered to Americans first. The STEM OPT program requires
employers to participate in E-Verify, an internet-based system that
compares information from an employee's Form I-9 (Employment
Eligibility Verification) to data from the U.S. Department of
Homeland Security and Social Security Administration to confirm
employment eligibility. President-elect Trump and his key
immigration team advisors are proponents of E-Verify and support
the program's expansion to all employers. As such, STEM OPT may
remain in effect for some time.
TN, E-3, and H-1B1 Visas – Free Trade Agreement
Visas
President-elect Trump has indicated he would seek to renegotiate or
withdraw from the North American Free Trade Agreement (NAFTA) and
similar trade agreements, many of which include streamlined
immigration provisions allowing professionals to work in the United
States under visa classifications defined in the agreements.
Employers should review their foreign workforce and gather
requisite data to possibly convert TNs (Canadian or Mexican), E-3s
(Australian) and H-1B1s (Singaporean or Chilean) to either an H-1B
visa or commence the permanent residence (green card) process. It
is unlikely that the renegotiation of, or withdrawal from, any of
the trade agreements will occur immediately after President-elect
Trump assumes office. Employers will have time to review their
workforce, consult with their immigration lawyers, and take
necessary action to maintain their foreign workforce with little to
no impact on the business.
H-1B Specialty Occupation Visas
President-elect Trump supports immigrants who are skilled, have
merit and will succeed in the United States, and would favor reform
of the H-1B program to eliminate "cheap labor." He may
seek, through legislation, a more active recruitment process built
into the existing H-1B regulations. He may pursue changing rules on
H-1B-dependent employers (those employing 15 percent or more H-1B
visa workers) and impose more stringent regulations on wages and
salaries paid to H-1B employees, possibly increasing them to as
much as $100,000. As part of his vision to protect the American
worker, President-elect Trump may also conduct more audits of H-1B
employers. Increases in enforcement and H-1B salaries may encourage
employers to ship offshore the IT and engineering work currently
performed under H-1Bs, which would be counter-productive. H-1B visa
reform will, in all likelihood, make certain IT projects too
expensive to remain in the United States. If there are no U.S.
workers available to handle the projects, the work may be
outsourced overseas, or the industry may be forced to automate, as
the auto industry did. This is an excellent time for employers to
review their H-1B and public access files and ensure all is in
order, as more audits of H-1B employers are anticipated.
Deferred Action on Childhood Arrival (DACA)
While the 725,000 or so DACA registrants in the United States may
not be affected immediately when President-elect Trump takes
office, it seems certain that the executive order implementing DACA
will be terminated, and those with employment authorization
document (EAD) cards will not have an opportunity to renew their
work permits, which would impact employers. It is a good time for
employers to review their foreign workforce and I-9 records to
review who has time-limited EAD cards, and be prepared for the
possibility that some EAD cards will not be renewed if DACA is
terminated. Revocation of this program will likely take some time,
but preparation is key to minimizing the disruption of the
employer's workflow.
Travel to the United States: A Fully Operational Biometric
Entry-Exit Visa Tracking System
The Trump administration will implement a biometric entry and exit
system at all land, air and sea ports. This system is No. eight on
the president-elect's 10-Point Plan to Put America First.
Statistics show that approximately half of the new illegal
immigrants enter the United States on a valid visa and then
overstay. President-elect Trump plans to combat that practice by
strictly enforcing visa expiration dates. It remains to be seen how
this priority will be implemented (by legislation or regulation),
but strict oversight on visa expirations are anticipated, given the
advisors President-elect Trump has enlisted to develop his
administration's immigration policy.
Increased Worksite Enforcement, Mandatory E-Verify and Visa
Compliance
President-elect Trump has clearly stated that his top priority is
to build a wall on the southern border and keep illegal immigration
to a minimum by immediately removing those who enter illegally or
detaining them until removed. He wants to end the existing
"catch and release" program in existence today. Such
enforcement-centric policies may result in tangential worksite
initiatives by the U.S. Immigration and Customs (ICE) resulting in
increased onsite inspections of I-9 forms. President-elect
Trump's promise to deport millions suggests that employers
should be proactive and review existing I-9 and E-Verify compliance
programs, or implement I-9 and visa-related compliance initiatives,
to ensure they are ready for any possible ICE investigations or
audits. Further, it is likely that mandatory E-Verify participation
by all employers will be proposed. Employers should consider
conducting voluntary internal audits now to limit or eliminate
potential fines in the event of an ICE investigation or
audit.
It is important to note that the president-elect cannot change the
existing immigration laws found in the Immigration and Nationality
Act (INA) unless Congress amends the INA, and President-elect Trump
signs it. This will take a considerable amount of time and
cooperation between Congress and the president. He can, however,
change policies or executive orders, such as the DACA program,
without the involvement of Congress.
Many of these changes are speculative and yet, it is clear that
changes in the above visa classes will take effect in 2017. Carlton
Fields' immigration practice group will monitor these upcoming
changes
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.