Trump Administration Immigration Policy Initiatives (Updated Jan. 3)

Donald Trump has been elected 45th president of the United States. His administration will pose new challenges for immigrants and immigration lawyers. This article addresses related questions.

To name a few challenges from recent history:

in the McCarthy era, when even a whisper of sympathy to the Communist cause could derail an immigrant’s life in the United States; in 1996 and the years that followed, when the Illegal Immigration Reform and Immigrant Responsibility Act wreaked havoc on our nation with severe penalties that had retroactive effect, and jurisdiction stripping provisions that severely curtailed federal court review; and in the dark days after September 11, when we found ourselves up against unexplained adjudication delays, detention without due process, and trials based on secret evidence.

–William A. Stock, AILA President

Through it all, members of the American Immigration Lawyers Association (AILA) have fought alongside our clients to secure fairness and justice for those in immigration proceedings of every kind.  And this time is no different.

1. Will having a new president affect my family-based green card case?

Congress created the laws that allow someone to sponsor a family member for a green card. No president can change a statute without the help of Congress.  Nevertheless, a president has a lot of say about how the green card system operates. While Mr. Trump has spoken a great deal about immigration, he has not directly addressed the family-based green card system. For now, we assume that the procedures will continue to operate in roughly the same way.

2. Will having a new president affect immigration based on same-sex marriage?

The Supreme Court issued two landmark decisions recognizing the rights of same-sex couples to marry in 2013 and 2015. While the Supreme Court occasionally overrules itself, it does so sparingly and generally only after a very long time has passed. Still, with at least one position open on the Supreme Court, and many more positions open in the federal judiciary, Mr. Trump will likely be able to nominate very conservative judges. As such, it seems probable that anti-marriage advocates will bring cases to try and chip away at marriage equality. Even if this is the case, sponsorship of a same-sex spouse for immigration benefits should remain an option absent a substantial, unconstitutional shift of power in the federal government.

3. What about EB-5 immigrant investor visa reform?

Updates may also be afoot for the EB-5 visa program, which gives green cards to immigrants who invest $500,000 and create new jobs in the U.S. Most recently, U.S. Citizenship and Immigration Services asked the Office of Management and Budget to review a proposed rule-making to update the program’s regulations.

The exact scope and details of the rule are still under wraps, but USCIS previously asked stakeholders for input on minimum investment amounts and regional center designation processes. And while it’s unclear if the Trump administration will continue pursuing those rules, even if it doesn’t move ahead with them, the EB-5 program could see some action in Congress, as EB-5’s regional center program is due to expire in April.

4. What will happen to DREAMers?

With Trump having said he will end President Barack Obama’s executive actions on immigration, anxiety continues to swirl over what will happen to the Deferred Action for Childhood Arrivals program, a deferred deportation program for immigrants who entered the U.S. as children.

Those who qualify are also able to receive a renewable work permit, and over 741,500 people have benefited from the program. Trump recently indicated he may seek to “work something out” regarding young, undocumented immigrants often referred to as DREAMers, but attorneys will also want to keep an eye on relief efforts in Congress.

Specifically, the bipartisan BRIDGE Act in the Senate will be one to watch. The legislation, rolled out in early December, would provide provisional protected-presence and employment authorization to individuals eligible for DACA.

5. Will there be “extreme vetting” of Arabs, Muslims, or refugees?

Even though the U.S. Department of Homeland Security announced it’s scrapping an “obsolete” program once used to track men from countries with sizable Arab and Muslim populations, the waters are still murky as to whether Trump will seek to reinstall the program.

When recently asked by a reporter whether he was still considering a registry or a ban targeting Muslims, Trump vaguely responded, “You’ve known my plans all along.” The New York Times reported last year that Trump said he would “absolutely” force Muslims to register, although that point was overshadowed later in the campaign, when Trump turned his focus to “extreme vetting” of immigrants.

Exactly what this would entail is, again, rather murky, but Trump has called for an ideological screening test for immigrants, saying that people who “do not believe in our Constitution or who support bigotry and hatred will not be admitted for immigration into our country.” The president-elect has also called for temporarily suspending immigration from parts of the globe that have “a history of exporting terrorism.”

The Trump administration could also move to lower refugee levels, perhaps completely halting Syrian refugee admissions.

6. Are changes coming for H-1B workers?

It’s also possible that changes to visa programs for skilled guest workers and investors could be on the docket.

For instance, although Trump has sent some mixed messages about his views on high-skill workers, he has clearly called for boosting the prevailing wage that is used to set the bar for H-1B employees.

7. Will E-Verify be mandatory?

E-Verify is an online employment eligibility verification tool. Its use is currently voluntary for most companies. There are some 6 to 7 million U.S. employers, and only about 600,000 or so using E-Verify right now. Congress may well seek to make E-Verify mandatory.

8. What about the border wall?

One of Trump’s main campaign promises was building a wall along the southern border, although the president-elect has already begun walking back some of that rhetoric. Post-election he told 60 Minutes that the wall could include “some fencing,” and later said some areas didn’t need a wall, pointing to existing “vicious rivers.” Significant construction would require congressional approval.

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