Are the Laws Regarding Employment-Based Immigration Likely to Change Under Trump?

Steven H. Garfinkel, Esq., Managing Partner
N.C. Board Certified Immigration Law Specialist
Steve.Garfinkel@garfinkelimmigration.com

For those of us who spend our days (and sometimes our nights and weekends) working in business immigration (assisting companies who hire foreign nationals "the right way"), there's been much discussion about what changes might be on the horizon for our corporate and Foreign National clients under the Trump Presidency. This paper will summarize some of the key aspects of the current system that might change and will "look into a crystal ball" to see whether it is likely that Congress will pass (and the President will sign) a new immigration law that would substantially change the current legal immigration system. Additionally, it will address what an "Executive Order" is and whether the President could successfully change existing law through that process.

President Trump made immigration one of his signature campaign issues, but much of the rhetoric of the campaign centered on "deporting the illegals," "building that wall," and "banning the Islamic terrorists." Some comments were made about "putting American workers first," but Trump did not provide specifics about changes he wanted to make to the legal immigration system (it is much easier to chant "build that wall" than "revise the H-1B nonimmigrant visa program to ensure that foreign nationals on H-1B visas don't adversely affect wages and working conditions of similarly situated U.S. workers"). All kidding aside, it is important to ask whether changes to the business immigration system are likely.

Some of the more likely changes we may see to existing visa categories are as follows:

THE TN VISA

One change that we could see sooner rather than later would be a change to the "TN" visa. The TN is based on a provision in the NAFTA agreement whereby Foreign National ("FN") professionals from Canada & Mexico may enter the U.S. to fill jobs listed on a schedule to NAFTA. Some of the more common occupations listed include Engineers, Computer Systems Analysts and Teachers.

Obtaining TN authorization is relatively quick and typically requires much less documentation and administrative effort than obtaining other types of visas. Further, there is no quota on the number of TN admissions.

President Trump pledged during the campaign that he would address what he believes to be damaging aspects of Free Trade Agreements. In mid-May, U.S. Trade Representative Robert Lighthizer formally triggered the 90-day consultation period required before the re-negotiation of NAFTA can begin. One consequence of a revision to NAFTA could be the loss or revision of the TN visa.

Although a relatively small number of FNs enter the U.S. annually through NAFTA, (see https://travel.state.gov/content/dam/visas/Statistics/AnnualReports/FY2016AnnualReport/FY16AnnualReport-TableXVIA.pdf), the TN is one of only a small number of visa categories by which U.S. companies may fill key positions, many in the Science, Technology, Engineering & Math ("STEM") fields.

THE H-1B VISA

The H-1B visa is the best-known (and most controversial) of the temporary (nonimmigrant) work visas. The law states that an H-1B visa may be issued to a foreign national "professional" who is sponsored by a U.S. employer to fill a professional level job. Current law sets an annual limit of 85,000 new "cap-subject" H-1B petition approvals each fiscal year, a relatively small number when considering a domestic workforce of 125 million and average new job creation of between 150,000 and 250,000 jobs per month over the past 6 years (U.S. Department of Labor, Bureau of Labor Statistics - https://data.bls.gov/timeseries/CES0000000001?output_view=net_1mth). Nonetheless, the H-1B is often criticized as a tool for bringing "cheap labor" to the U.S.

Attorney General Jeff Sessions was one of the fiercest opponents of immigration during his time in the Senate. Although he will have significant influence over immigration issues as Attorney General, most of his attention will focus on enforcement efforts rather than changes to legal immigration policy. This is not to understate Sessions' influence on the President in formulating such policy. Further, Trump's nominee to be Director of the USCIS, Lee Francis Cissna, is known to be a critic of the H-1B visa in its current form. Possible changes include (1) a requirement that U.S. employers recruit American workers before seeking to hire an H-1B worker, (2) allotting of H-1B visas based on highest level of education and/or highest salary offered, and (3) an increase in the number of audits of H-1B employers to confirm that all information provided in an H-1B petition is accurate and and imposing fines if that is not the case.

For years we've been hearing about Comprehensive Immigration Reform ("CIR"). Might we see a significant change to existing immigration law under the Trump administration?

LEGISLATION VS EXECUTIVE ACTION

It is important to remember what we learned (or should have learned) in our high school civics course. The U.S. is a "country of laws" and the constitution mandates "separation of powers." We learned about the three branches of government: the executive, legislative and judicial branches. We learned that the legislative branch "makes" the law, the judicial branch "interprets" the law and the executive branch (of which the President is a part) "enforces" the law. This has not changed, and it is important to distinguish between the "making" of laws and the "enforcement" of laws. Only the legislative branch (the House of Representatives and the Senate) has the authority to make new laws. The President, as the head of the Executive Department, may enforce existing laws.

In general, the Republican Party (which controls both Houses of Congress as well as the Presidency) is viewed as "pro-business." Historically, Republicans favor business immigration because it helps employers. We have seen an expansion of work visa categories and levels of employment-based immigrants under prior Republican administrations.

That being said, the Trump administration and the current Congress cannot be viewed as "traditional Republican." We have seen many Republican members in the House of Representatives become "enforcement focused," refusing to even consider comprehensive efforts to revise the country's immigration law until certain enforcement standards are met.

A President does have the authority to issue "Executive Orders." While there is no specific provision in the Constitution that permits them, there is a "grant of executive power" established by Article II of the Constitution. Presidents have used that language to issue such orders - everything from changing domestic policy to going to war. The U.S. Supreme Court has upheld almost all challenges to such Orders. You may recall that President Obama, frustrated by Congressional inaction on immigration, issued an Executive Order in the final year of his presidency. A portion of that Order sought to expand the Deferred Action for Childhood Arrivals ("DACA") program and create a new Deferred Action for Parents of Americans and Lawful Permanent Residents ("DAPA") program. To the dismay of many, that portion of the Order was successfully challenged in the Courts and did not take effect.

There is a general consensus among the employment-based immigration bar that it is highly unlikely that Congress will pass Comprehensive Immigration Reform (or any other immigration legislation to expand visa options or increase numbers for employment-based immigrants) anytime soon. It is possible, although unlikely, that President Trump may try to reform the legal immigration system through the issuance of one or more Executive Orders. For the most part, we expect "continuing inaction" on changes to the U.S. legal immigration system.