By:  Allison McDonnell, ICG Content Coordinator

President-elect, Donald Trump, will take office as the United State’s 45^th president on January 20, 2017.  Trump ran his presidential campaign from a clear anti-immigration platform.  His ten-point plan, which includes limiting legal immigration, could have substantial effects on business immigration in the U.S.  However, it is still too soon to tell exactly which stances Trump’s administration will, or will be able to, follow through on.  Changes on the business-related immigration side are likely to come in incremental stages and later on, as his first priority will be undocumented immigrants with criminal records.

H-1B Visa Program

Throughout his campaign, Trump spoke out against the H-1B visa program, arguing that it is an abused process used to replace American workers with cheap labor.  He claimed several times that his intentions are to end the program completely.  However, experts say that the program will more than likely not be eradicated, but simply reformed.  For one, Trump, himself, understands the value of high tech global talent.  In addition, the fact that he desires a strong relationship with India, whose tech workers are among the largest group of beneficiaries of the H-1B program, will likely keep him from abolishing the program all together.  With popularity of reform from several congressmen and Trump’s base, it is likely that smaller caps and more stringent qualifications will be imposed.

E-1 and E-2 Treaty Trader and Investor Visas

Trump has been less vocal about planned changes to employment-based visas outside of the H-1B visa.  While it is likely that Trump will make major reforms to the H-1B program, we could also see some changes to the E-1 and E-2 visa classifications, given that they are increasingly the second-best option behind the H-1B visa for many immigrants.  For one, a tougher application of legal standards in immigration court and in consular processing may be applied to all visa categories.  In addition, caps could be implemented, which may be country-specific.  However, since a key part of the E-2 visa program is job creation, it could quite possibly go the other way, with the category growing in number.

Employment Eligibility Verification:  I-9 and E-Verify Programs

Considering employment draws immigrants to the United States, it is likely that we will see stricter enforcement of the Form I-9 verification process under Trump’s presidency.  Starting next year, there will likely be more ICE officers and immigration judges hired to expedite cases.  This increase in staff may lead to an increase in the number of worksite inspections for I-9 compliance.  It is also possible that there will be an increase in penalties and fines for any violations uncovered.  Therefore, it is important for employer’s to ensure that their paperwork, policies, and practices are in order in case of an audit.  Given that Trump may overturn President Obama’s Deferred Action for Childhood Arrival (DACA), employers also need to be aware of which of their current foreign-born employees may become immediately undocumented and take proper action.

Trump has consistently applauded the E-Verify process for its systematic ability to filter out unauthorized employment.  In his position paper on immigration, he would mandate that the E-Verify process be used across the U.S.  Although, Trump will likely meet the same resistance as Congress has in the past, when it tried and failed several times to implement mandatory E-Verify.  That being true, Trump may still be able to strengthen or increase the program through unilateral executive orders.

In Closing

Although it is still too soon to tell precisely which of Trump’s campaign promises he will have the time, resources, or support to follow through on, it is a good idea to be informed and alert to the timing and the next steps required concerning your immigration matters and remain proactive, both as an employer and employee.  If you haven’t moved forward on a viable case, we would recommend that you meet with immigration counsel to prepare for the upcoming months under the new administration.  You can contact our office here.

The OSC publishes responses to  TAL Letters (Technical Assistance Letters) that they receive from attorneys, employers and other stakeholders.  USCIS identifies this circumstance in the I-9 Employer Handbook as an employee who comes forward and indicates that their identity is now different than previously represented (Hmm…)  and now wants to “regularize” their employment record.  Or, what do you do if you become aware, for instance, that a social security number associated with a particular employee was not legally assigned?

Discussion starts on page 2.

OSC’s TAL implies that if an employer has not consistently-followed a policy of terminating individuals for providing false information during the hiring process, it couldn’t use that policy to justify a termination in this particular scenario.  Even if the employer did consistently terminate individuals who were dishonest during the hiring process, OSC implied that this was not necessarily a slam dunk argument either. It is important to note that OSC did not commit itself by concluding that such a termination under the circumstances would not constitute discrimination or be deemed to be a valid legitimate non-discriminatory reason for termination. It simply stated it would depend on the facts and circumstances.  Before you go down this road, remember –the USCIS Handbook for Employers provides that “Where an employee has worked for you using a false identity but is currently work authorized, the I-9 rules do not require termination of employment.”

There’s also guidance regarding this for DACA employees that you might wish to review.  For more on I-9 compliance please refer to our Employer Resource Center

The Obama administration took the battle over immigration to the Supreme Court on Friday, formally asking the justices to review a federal court decision that left in place a nationwide injunction against President Barack Obama’s sweeping initiative to grant quasi-legal status and work permits to millions of immigrants here illegally.

DAPA would grant deferred action status to those who have lived in the United States for at least 5 years and have not committed felonies or repeated misdemeanors, and have children who are US citizens or lawful permanent residents. Deferred action is not full legal status, but in this case would come with a three-year, renewable work permit and exemption from deportation. The Court will hear arguments in April and rule by June.

Read more here    From Politico here

Since early 2015, qualified California residents have been able to apply for and receive a driver’s license issued by the Department of Motor Vehicles without proving that their presence in the United States is authorized under federal law.  All employers must accept the AB 60 driver’s license as a Form I-9 List B Identity document if the license reasonably appears to be genuine and to relate to the individual.  As with all permissible List B driver’s licenses, the AB 60 driver’s license must contain either a photograph or list the individual’s name, date of birth, gender, height, eye color, and address. The AB 60 driver’s license only documents the employee’s identity; California employers must still examine a List C document that establishes employment authorization, such as a Social Security card or birth certificate.

View the Example of the AB-CA Driver’s License annotated with “Federal Benefits Apply”.

This is an excellent resource released by USCIS in both English and Spanish.  You can also enter your email address and sign up for updates.

These flyers explain the guidelines that take effect for expanded DACA on Feb. 18, 2015, and how people can prepare for requesting DAPA once it becomes available in mid-to-late May.

On November 20, 2014, President Obama announced efforts to retool critical aspects of the immigration system—how we enforce immigration laws, how we process immigration benefits, how we encourage further business innovation, and how we welcome immigrants to this nation.

Following the address, executive agencies made available intra-agency memoranda and fact sheets detailing specific actions that have already been taken, or will be taken in the future in ten areas within the confines of the law. These actions generally involve border security, the current unlawfully present population, or future legal immigration.

Below we link to Fact Sheets that address the details that we are aware of at this time of the 10 Executive Action Initiatives with links to the memoranda. Additional guidance will be forthcoming.

The expansion of the DACA program that has now removed the age restriction and increases employment authorization from 2 year to 3-year increments, is expected to go into effect on or about February 20, 2015. The implementation of DAPA, the Deferred Action for Parental Accountability, that allows parents of US citizens and lawful permanent residents who have been present in the country since January 1, 2010 to request deferred action and employment authorization, is expected to roll out approximately mid-May 2015.

Resources:

http://www.uscis.gov/immigrationaction

http://www.dhs.gov/immigration-action

http://www.immigrationpolicy.org/special-reports/guide-immigration-accountability-executive-action

Should you have questions at this time or would like to retain our office to assist you or your employees with their immigration matters, please contact us at info@immigrationcompliancegroup.com or call 562 612.3996.

We applaud President Obama’s announcement of  broad executive action to offer temporary relief from deportation to millions of undocumented immigrants, stating that the separation of families or the oppression of low-wage immigrant workers is “not who we are as Americans.”

Concurrent with the televised nationwide presidential address last night, the Department of Homeland Security (DHS) Secretary issued a series of memoranda outlining the various facets of the programs and policies which would constitute, in total, “executive action” relating to immigration matters such as:  Revising Removal Priorities, ending Secure Communities and replacing it with a New Priority Enforcement Program, expanding DACA, extending DACA to Parents of US citizens and Permanent Residents, revising parole rules, expanding Provisional Waivers to spouses and children, modernizing high-skilled business-related immigration, and more.  We link to this information above.

Additional specific information on the initiatives contained in the Executive Action taken by President Obama can be found here

“The decision to simply delay this deeply controversial and possibly unconstitutional unilateral action until after the election — instead of abandoning the idea altogether — smacks of raw politics,” House Speaker John Boehner (R-Ohio) said in a statement which is a total surprise considering the House’s refusal to do anything on immigration reform; is he being sarcastic or untruthful?!   Even members from within Obama’s own party scoffed at the decision.  Despite this,  the White House just last week assured anxious Hispanic lawmakers on Capitol Hill that President Obama will use executive action before the holiday season closes to reform U.S. immigration law, after breaking his pledge to make changes by the end of summer.  The message was delivered in a meeting Thursday with White House Chief of Staff Denis McDonough and other administration officials, including domestic policy adviser Cecilia Munoz, a key player for Obama on the issue, according to Politico.

Illinois Democratic Rep. Luis Gutierrez said Obama’s decision to “play it safe” could end up harming his good standing among many Latino voters in the midterms.  He further stated, “While we wait until November … there’s going to be another 60,000 people deported,” he said. “There is pain and suffering in the community, and there is a lot of anguish and anger.”

Other resources:

1. Latin Post
2. Los Angeles Times
3. 7 Big Items Congress Won’t Get to this Fall 

Though the notice is preliminary and subject to change, it offers over half a million DACA recipients vital information about what they should do to prepare for the road ahead.  Refer here