How Far Will He Go? Predictions for Changes in U.S. Immigration Under the Trump Presidency

Meredith W. Barnette, Esq., Partner
[email protected]

With immigration serving as one of the centerpieces of Donald Trump's campaign, anticipation is mounting to see exactly what he will actually do once in office. During his campaign, Donald Trump proposed three core principles of immigration reform:

1) Secure the Southern Border. Trump favors building a border wall between the U.S. and Mexico, and asserts that Mexico should pay for it or be subject to adverse action from the U.S. government including impounding remittance payments sent to Mexican families from undocumented workers in the U.S. (requiring wire transfer customers to prove legal status in the U.S. to wire money abroad), increasing visa fees for Mexican CEO's and diplomats, increasing fees on all border crossing cards, increasing fees on NAFTA visa applications by Mexicans, and increasing fees at U.S. ports of entry.

2) Increase Enforcement of Immigration Laws. Trump has proposed increasing the number of ICE (Immigration & Customs Enforcement) officers, implementing nationwide usage of the E-Verify system to verify workers' identity and work authorization, mandatory deportation of foreign nationals with criminal convictions, requiring detention rather than catch-and-release, defunding sanctuary cities (jurisdictions that have laws or practices in place to limit their assistance to federal immigration officials), increasing penalties for individuals who overstay their allowed time to be in the U.S., cooperating with local gang task forces, and ending birthright citizenship.

3) Focus on Helping American Workers. This prong of Trump's plan includes long-term reform for legal immigration such as raising the prevailing wage for H-1B petitions, hiring unemployed U.S. workers before recruiting foreign workers, eliminating the J-1 visa (work and study exchange visitor) and instead offering similar job opportunities to inner city youth, and ending welfare abuse by requiring foreign nationals to certify the ability to pay for housing, healthcare, and other needs before entering the U.S.

While these three prongs made up the backbone of Trump's formal immigration plan, he has also proposed other actions, including ending Obama's executive actions which benefit the undocumented. This would include terminating Deferred Action for Childhood Arrivals (DACA), which has provided work authorization for approximately 700,000 recipients. It is unknown whether the Trump administration will terminate existing grants of DACA as of a set date, or instead let DACA recipients continue working through the expiration of existing work authorization. Administrative programs like this have never been used for deportation in the past, so those who have already received or applied for DACA will not necessarily be targeted for deportation.

President-elect Trump has also proposed renegotiating NAFTA and possibly eliminating the TN work visa category for Mexicans and Canadians, suspending U.S. visa issuance to people where adequate screening cannot occur, ensuring foreign nationals are taken back by their own countries when deported from the U.S., fully implementing an entry and exit biometric system at all land/air/sea ports, ending job and benefits attractions for undocumented immigrants, vetting and ideological screening for admission to ensure individuals share America's values, and reform legal immigration to historic norms.

The Center for Immigration Studies (CIS), an anti-immigration organization, helped Trump craft his immigration plan and earlier this year released a list of 79 actions the next president can take without necessarily needing legislative action to change the immigration laws. These actions focus on restricting and/or terminating certain benefits, reform of existing visas, and increasing enforcement, both in investigations/audits and prosecution/fines. The CIS also recommends collection of mandatory DNA samples from permanent resident applicants.

However, many of the CIS recommendations aren't feasible without major repercussions to the current system and Trump has already started to somewhat soften his stance on immigration. In a 60 Minutes interview after the election, Trump conceded that the promised wall between the U.S. and Mexico may end up being a fence in some places. He also indicated his priority is to deport 2 to 3 million immigrants with dangerous or criminal records, rather than the 11 million undocumented immigrants targeted during the campaign. Over 2 million people have been deported under President Obama's time in office.

President-elect Trump is also currently building his cabinet, which includes appointing a new Secretary of the Department of Homeland Security, the parent organization of U.S. Citizenship & Immigration Services, the benefit arm, and Immigration and Customs Enforcement, the enforcement arm. If the president-elect does direct widespread deportation and a southern border wall, the secretary will have to carry it out. The New York Times has put forth four possible names: the former sheriff of Maricopa County, Arizona whose hard-line stance on immigration has made him a controversial figure, David A. Clarke, Jr., Milwaukee County sheriff, Michael McCaul, Rep. from Texas/Chairman of House Homeland Security Committee, and Jeff Sessions, Senator from Alabama.

Based on what Trump has so far pledged as part of his campaign promises, there will be directives issued to change the way the current immigration system is run, and those changes will likely be more restrictive and carry more penalties than current policy. It remains to be seen whether he will implement all of the actions enumerated in his pre-election plan, but we've already seen some relaxing on issues and small moves toward a political center. Some of the proposed actions can be done rather quickly, such as reversing President Obama's executive actions. But major changes will take longer, and some proposed changes, such as the creation of an ideological screening system for admission, will likely face constitutional challenges. At this point the extent of change is unknown and since Trump is more unpredictable than other president-elects, much will remain unknown until his term begins.