Following a heated presidential election process, many businesses are wondering what direction immigration will take under the new administration. Are changes likely that are adverse to business immigration rules or practices? In a November webinar (available online), Fragomen’s Bo Cooper and Carl Hampe, who have significant experience as immigration advisors to a wide array of business clients, separate rumor from reality as they look ahead at the likely impact the new administration will have. The transcript below has been edited for length and style.
Cooper: This election has gripped those of us in the immigration field over the kinds of changes that are going to take place. Immigration was certainly a major part of President-elect Trump’s campaign and a major driver of his election. Asked about his top three priorities in his first visit to congressional leadership after his election, immigration was right there. We’ll start by trying to identify the top policy changes signaled in the campaign that could affect business immigration.
A major campaign theme, which is reflected in the incoming administration’s 100-day action plan, is the notion of American jobs first. The president-elect has promised to put in place policies to prevent the movement of jobs overseas and to ensure that American workers have first access to open U.S. jobs. That can translate into a very wide range of potential immigration changes, from intensified investigations into visa program compliance to a tougher adjudications climate to regulatory or legislative changes to key visa classifications. The president-elect has also stated that he intends to renegotiate NAFTA, or even withdraw entirely, a step that could have significant immigration consequences.
Hampe: In the business immigration arena, there are policies that can be changed fairly easily, and there are policies that require more process to change and therefore give companies more time to plan. The easiest things to change will be the sub-regulatory actions, such as policy memos, DOL FAQs, executive orders and more subtle things, like administrative processing decisions. These changes can happen relatively promptly because they’re below the regulatory level. Harder to change are published regulations, which require formal rulemaking under the Administrative Procedure Act (APA). The hardest to change are statutes because they require a full legislative process. Most of the biggest potential immigration policy changes for business fall in the harder or hardest categories.
Cooper: There are also treaties. President-elect Trump has talked about NAFTA very prominently, indicating during the campaign that he would “rip up” the agreement. The 100-day plan includes withdrawing from or renegotiating NAFTA. That has grabbed the attention of employers who rely on professionals here on NAFTA-based TN visas. So how easy would it be to rip up NAFTA? It’s actually easier to withdraw than one might think. Article 2205 provides that any party can withdraw after six months’ notice. It may not, however, be quite so simple. There’s a significant debate over whether the executive can make that choice or whether it requires congressional action. It makes sense to anticipate that any changes to NAFTA, including worst-case scenarios, will unfold over time.
Businesses therefore need to consider what to do with their TN population in view of this possible change. That’s a matter of strategy and risk tolerance, subject to consultation between the business and its immigration provider. Some employers are simply gathering data on their TN populations so they have precise detail about that population and are prepared to make changes as necessary. Some employers are acting a bit more cautiously and moving all their TNs over to their H-cap caseload, though they are fretful, given the oversubscription of the H-1B supply, about the chances of having an H-1B-cap case accepted.
Hampe: What specific business immigration regulations might be at risk? In the category that would require formal rulemaking, there is the STEM OPT rule (optional practical training extension for STEM students), which has been the subject of litigation in which the current administration prevailed. This rule could be under consideration for potential amendments. The same situation applies for H-4 employment authorization, or EAD (employment authorization document) rule — also the subject of litigation – which allows thousands of spouses of H-1B workers to work without having a negative effect on U.S. workers. The litigation challenging this rule, while not successful, was widely reported. Expect that rule to be under reconsideration in the new administration, as well.
Cooper: In areas where there is a regulation in play, the likelihood of seeing something right at the outset of the next administration is not great. There are the inevitable challenges that accompany a transition, of putting a leadership team in place and sorting out first priorities. If these issues that Carl identified do get put into play, there will be a regulatory process and a chance for stakeholders to participate. It does, however, make sense to keep an eye on these things as the incoming administration will certainly review the Obama administration’s immigration reform policies.
We’ve been talking principally about business immigration, but it is also important for employers to consider the ramifications of possible changes in enforcement policy. Strengthening immigration enforcement was an important theme of the campaign, and it’s emerging as a top-line theme of the incoming administration. Employers certainly need to be attentive.
One area of key focus is compliance. With the president-elect continuing his strong focus on protection of U.S. jobs, and of more muscular use of investigative authorities, general counsels and compliance officers are becoming increasingly aware that managing immigration-related risk has got to be an important part of their compliance portfolio. Companies are quite properly reviewing their vendor management policies, their employment verification policies, their immigration-related antidiscrimination policies, their companies’ business travel practices, H-1B compliance and other areas with major immigration facets to ensure that they have a strong compliance profile.
Another issue with potentially broad consequences is the promise to implement “extreme vetting.” This term came up in the campaign, and it has surfaced as a first-day initiative in the 100-day plan. The incoming administration has promised to prohibit admission into the country from terror-prone countries where vetting is not possible and to implement “extreme vetting” for all immigration processing. Those vetting procedures have not been announced, and I don't think they’ve been devised. The post-9/11 experience suggests, though, processing times, security checks and delays could increase significantly.
There is also the prospect of DACA (deferred action for childhood arrivals) elimination. It’s a good bet that the president-elect will repudiate the DAPA (deferred action for parents of Americans and lawful permanent residents) and the expanded DACA programs announced by President Obama in November 2016. Those two programs, which would have provided deferred action and employment authorization to broad new categories of undocumented persons, were enjoined in federal court and never took effect. There’s a major question, though, about what to do with the 725,000 or so people who have work authorization and deferred action under the current DACA program. It’s not clear whether that will be eliminated. Changes to that program will broadly impact employers throughout the economy.
Hampe: What employment verification issues might arise? President-elect Trump talked about tripling the number of Immigration and Customs Enforcement (ICE) agents. That would take time. It is, however, very doable. It’s quite possible we will see a sizable increase in the number of ICE agents in the next year or two. That could mean a new and more robust focus on worksite enforcement. There were ICE worksite raids during the Bush administration. There’s no need to change regulations or enact legislation to accomplish this change. It could turn on a dime.
Also raised during the campaign was a mandatory E-Verify system, which would require legislation. Just about everything that can be done to expand E-Verify by regulation was done in the Bush administration, which expanded E-Verify requirements to federal government contractors. To expand E-Verify to all U.S. employers would require legislative action, so this change would likely take time.
Cooper: We’ve touched on questions of process, and what changes would need to be made by Congress. It’s at least as important to keep an eye on immigration changes that could be made without regulations or statutes. Agency adjudicators tend to follow signals from new leadership, or to engage in bottom up policy changes when they have the space to do so. We have seen this in the USCIS (United States Citizenship and Immigration Services) context before, such as when there was a shift in L-1B (intracompany transferee) adjudications patterns, and a steep and sustained increase in requests for additional evidence and in denials, without any announced policy change. That’s the sort of change that could be made quickly without a regulation.
Hampe: Many are asking what’s going to happen to people who are currently in the pipeline. Often they have an H-1B visa and an application for permanent status in process, or they have applied and are awaiting a result. This raises the question of whether some changes can be implemented retroactively. There are sub-regulatory changes that would require statutory authority to be applied retroactively, and we are aware of no such, or very little such, authority. Really fast change, however, can sometimes feel retroactive, and it’s not unheard for an agency to try to get away with a retroactive change even when they’re not entitled to do it. Nonetheless, the rule is that these changes should be forward-looking. The same goes for regulatory changes. To propose a new regulation, you must go through the APA rulemaking process unless the statute specifically says you can impose a change retroactively.
There are some practical considerations to these potential changes. First, everyone should ensure that their I-9s (employment eligibility verification) are in order. That’s good advice at any time, but certainly in anticipation of a new administration that might focus more on worksite enforcement. Second, perform a census of the immigration status of your current foreign national employees and know your company’s use of the U.S. visa system. Then consult with your immigration counsel about the pertinent issues and what changes are likely to occur, how soon and what the impact will be on your company. Finally, while most of this pertains to routine operation of your program, companies do take significant personnel actions related to a reorganization or corporate transaction. That requires a different, more extensive analysis.
Another important question concerns the impact on current holders of H-1B and OPT (optional practical training) visas and those in the process of applying for permanent residency. This is a retroactivity question. Our view is that people who currently have H-1B or OPT status should be able to enjoy that status. As we noted earlier, any new rules are unlikely to be implemented in a split second because most consequential new rules would require a change in regulation and a formal rulemaking process. You can bet the business community will participate.
It is important to understand the best-, moderate- and worst-case scenarios under a new administration. In the best-case scenario, recall that President-elect Trump’s principle campaign promise was to build a wall. If that occurs, the steam goes out of some proposals that people believe are much more likely to significantly, and perhaps adversely, impact the day-to-day operation of business immigration programs. The moderate-case scenario is that there is early regulatory activity, with some of the business immigration provisions put into play, but it’s done through the rulemaking process, with an opportunity to participate and some kind of rational outcome. The worst-case scenario would be a storm of legislative activity, with far-reaching bills introduced that would have a number of negative consequences for business immigration programs.
Published January 12, 2017.