Change is Hard - Immigration and Trump's First 100 Days in Office and Beyond

The more things change - well the more things change - but the end results may be the same, at least where U.S. immigration policy and the Trump Administration are concerned. In President Trump's first hundred days in office, the Oval Office saw a flurry of activity, including leaked Executive Orders, Executive Actions, government announcements and litigation. President Trump's desire to make good on his ten-point immigration platform campaign promise is apparent: Build the wall; End "catch and release"; Create a deportation task force and focus on criminals in the country illegally; Defund sanctuary cities; Cancel President Obama's executive actions; Extreme vetting; Block immigration from some nations; Force other countries to take back those whom the U.S. wants to deport; Get biometric visa tracking system fully in place; Strengthen E-Verify, block jobs for the undocumented; and Limit legal immigration, lower it to "historic norms," and set new caps.

On Friday, January 27, 2017, President Trump took his first step in securing U.S. borders by signing an Executive Order titled "Protecting the Nation from Foreign Terrorist Entry into the United States", relating to visa issuance, screening procedures, and refugees. It immediately suspended immigrant and nonimmigrant entry of nationals from certain designated countries for 90 days. Designated countries included Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. Although the Order went into immediate effect, it failed to define what it means to be "from" a designated country and whether green card holders were also subject. This caused mass confusion on the part of U.S. immigration inspectors, airline personnel as well as foreign national travelers, many of whom were already in transit to the U.S. What followed was a slough of government announcements attempting to provide additional guidance to address the Order's shortcomings. Inevitably, federal litigation ensued with Washington and Minnesota challenging its authority, and the travel ban was suspended.

Undeterred, President Trump signed another Executive Order on March 6, 2017, replacing the one signed in January. The new version banned citizens of six (6) majority-Muslim nations including Iran, Libya, Somalia, Sudan, Syria, and Yemen and was more narrow in scope than the initial Order, as it did not extend to current visa holders, lawful permanent residents ("green card" holders), or Iraqi nationals. Implementation of this revised Order was quickly halted by federal courts. Hawaii and Maryland district courts issued two temporary restraining orders opining that the Muslim and refugee bans will be found unconstitutional based on discriminatory intent that violates the First Amendment. The suspension of the revised Order has now been in place since March 16, 2017.

Most recently the Fourth Circuit Court of Appeals ruled that the revised executive order violates the First Amendment's prohibition of government establishment of religion. (The Trump Administration has appealed this ruling to the Supreme Court.) The Ninth Circuit Court of Appeals has now also ruled Trump exceeded authority Congress granted him in making national security judgments in the realm of immigration without adequate justification.

  • Despite these rulings, the Trump Administration has not given up. A March 17, 2017 Department of State cable directs U.S. embassies to identify populations warranting increased scrutiny and toughen screening for visa applicants from those groups. This extreme vetting will tax existing consular resources and likely result in increased government processing times and reduced visa appointment availability. Along those lines, proposed Form 5535 includes supplemental questions for visa applicants. In advance of form approval, Consulates are already collecting ten additional categories of data for an undefined subset of visa applicants:
    • Travel history during last 15 years, including source of funding for travel;
    • Address history during last 15 years;
    • Employment history during last 15 years;
    • All passport numbers & country of issuance held by applicant;
    • Names & dates of birth for all siblings;
    • Name & dates of birth for all children;
    • Names & dates of birth for all current & former spouses, or civil or domestic partners;
    • Social media platforms & identifiers, also known as handles, used during last 5 years; and
    • Phone numbers & email addresses used during the last five years.

In addition, U.S. Citizenship & Immigration Services (USCIS), the Department of Homeland Security agency administering benefits, suspended its premium processing service for the H-1 B visa category, a category upon which many U.S. employers rely to obtain and keep the best global talent. Premium processing allows these U.S. employers to pay an additional filing fee of $1,225 for expedited processing of certain employment-based petitions. When faced with regular processing times of 6 - 8+ months, premium processing is often the only way to obtain a timely approval for those needing permission to work and travel. The suspension will frustrate U.S. employers' ability to attract top talent, with foreign workers (many U.S. degree holders) opting to pursue jobs in more immigrant-friendly countries.

On the horizon, U.S. employers should expect increased numbers of worksite visits and audits by U.S. Immigration & Customs Enforcement, the Department of Labor and the U.S. Citizenship & Immigration Services Fraud Detection and National Security program. Those employers with appropriate, up-to-date compliance policies and procedures will be in the best position to avoid potentially stiff civil and potential criminal penalties and a tarnished public image for employing unauthorized workers.

Change isn't easy. The Trump Administration has discovered that implementing the changes it desires is no simple task. However, the Administration appears determined to achieve its agenda one way or another and is willing to change its approach to accomplish what it has set out to do. In the meantime, stay tuned. No doubt, there is more change to come.