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 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

America’s Voice reports; we quote…

The New York Times  has released a profile of journalist Jorge Ramos that underscores the political dangers Republicans have created by embracing anti-immigrant policies.  Ramos explains the reasons why immigration is such a salient issue for him and many other Latino voters.  As he tells Jackie Calmes of the Times:

“immigration is personal.  Immigration is the issue that tells us who is with us and who is against us; there’s no question about it.  And it’s very simple to understand why — half of all Latinos over 18 years of age were born outside the United States.  It really makes no sense to attack them and criticize them if you want their vote.”

As former George W. Bush campaign advisor Matthew Dowd states:

Remember what L.B.J. said, ‘When you lose Walter Cronkite, you’ve lost the war’?  [Ramos is] not only a journalist, he’s become the voice of the Latino constituency.  And that’s where Republicans have to worry — you don’t want to lose Jorge Ramos.

 

The U.S. technology industry might finally get the immigration reform that it wants. Bipartisan Senate groups introduced two tech-focused bills this month.  The Immigration Innovation Act – which increases the cap on H-1B Visas from 65,000 to 115,000, eliminates per-country limits on visa petitioners and lets spouses of H-1B visa holders work – came out of conversations with corporate tech leaders.

The Startup Act, which already has been introduced on three earlier occasions, creates a new visa category for foreign entrepreneurs.

For more:  http://www.bloombergview.com/articles/2015-01-22/obama-immigration-reform-h-b1-visas-and-silicon-valley

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

The Los Angeles Times reported that Boehner’s leadership team was drafting “principles” for overhauling immigration laws that will be presented in coming weeks. His remarks were made Wednesday (Jan. 8, 2013) during the first private meeting of House Republicans in the new  year.         

“We are working on a standards or principles document,” Boehner said, according to a person in the room granted anonymity to discuss the private session. The document is being drafted by Boehner, his leadership team, including House Majority Leader Rep. Eric Cantor (R-Va.) and House Judiciary Committee Chairman Bob Goodlatte (R-Va.), as well as other members interested in the issue.

House Republican leaders believe that the GOP needs to support an immigration overhaul to woo Latino voters in advance of the 2016 presidential election – if that’s even possible with the rampant obstructionism that has plagued the House.  In any event, we all sit waiting to hear about this step-by-step approach that he’s been talking about for months.

The small team of GOP members and staff has been working to draft a statement of basic principles on immigration policy for several weeks. The effort is being coordinated by Rebecca Tallent, former immigration advisor to Arizona Sen. John McCain and a veteran of the previous effort to pass immigration reform during the second term of President George W. Bush. Boehner hired Tallent in December.

It was reported that the goal is to present the document — which could serve as an outline for future legislative action — before the House GOP retreat at a resort on the Eastern Shore of Maryland on Jan. 29th.

It is likely that Boehner will wait until the filings for Republican primaries are past before things really get moving in order to protect Republican incumbents from having to vote on immigration bills that could be used against them by far right candidates.

We will continue to keep you posted.

For more reading:  LA Times,  Washington Post

Much of the immigration challenges around case approval for entrepreneur start ups with USCIS has to do with the cases being reviewed by untrained officers, a lack of overall guidance for attorneys and  practitioners concerning this casework, and a fundamental lack of “real world”, hands-on  business knowledge on the part of USCIS.  The agency has definitely released a nice looking mini-website marketing piece on the subject.  We remain hopeful that the implementation of the below-listed changes will be the start of a new mindset for USCIS adjudication of entrepreneur start-up casework.  In reviewing the information,  we note that the Entrepreneur in Residence (EIR) team states that they have:

– Developed and deployed a training workshop for USCIS employment-based immigration officers that focuses on start up businesses and the environment for early-stage innovations;
– Trained a team of specialized immigration officers to handle entrepreneur and start up cases;
– Modified Request for Evidence templates for certain nonimmigrant visa categories to incorporate new types of relevant evidence into the adjudicative process; and
– Developed a plan for quarterly engagements with the entrepreneurial community to ensure that USCIS stays current with industry practices.

To sustain the momentum and build on the team’s accomplishments, USCIS indicated that they have extended the EIR project through April 2013.  The project should be extended indefinitely if we are seriously courting foreign entrepreneurs to help jump-start the US economy.  Among other things, the team states that it will expand its focus to immigrant visa pathways that may enable foreign entrepreneurs to start a business in the United States within current immigration law.

We are hopeful, in light of the economic challenges ahead of us in the USA at this time, that Congress will have a light bulb moment and pass legislation for a Start-up Visa and find  a balanced and fair approach to increasing the visa alotment for STEM occupations without the punitive tradeoff approach of penalizing other visa classifications in return.  For more information on the EIR program, we link here.

By:  Timothy Sutton, Communications Editor

California’s governor is poised to sign a bill AB 1081 dubbed “The Anti-Arizona Act,” officially titled: Transparency and Responsibility Using State Tools or California TRUST Act. The bill is an attempt by California legislators to set a national precedent: local government opting-out of enforcing federal immigration policies. This anti-Arizona legislation arguably mirrors the purpose of Arizona’s SB 1070, selective enforcement of federal immigration laws. Without question, immigration laws are under federal jurisdiction. Enforcement of immigration law is not within the discretionary powers of a state or local government. The TRUST Act is an attempt by California to allow local government to back out of an agreement with the Immigration and Customs Enforcement (ICE) Secure Communities program signed in 2008.

Secure Communities requires that police and law enforcement provide the federal government with fingerprints of criminal suspects detained by local authorities. These fingerprints are run through a federal database for dangerous undocumented criminals; upon discovery of any prior criminal record, undocumented detainees will be placed into expedited deportation proceedings. California’s initiative to overrule nationally implemented immigration programs is teetering on a slippery slope.

AB 1081 requires:

• Local governments pass “opt-in” ordinances in order to continue participation in the Secure Communities Program
• Submit “anti-racial profiling” plans to the DOJ and monitoring associated with Secure Communities participation
• The modified participation agreement must include safeguards against racial profiling not limited to:
  • Prohibiting driver’s license checkpoints to obtain fingerprints
  • Establishing an expedited complaint system to review claims prior to removal

Businesses may resent the current administration’s attack on their hiring or employment practices. An unprecedented number of ICE audits, sanctions, civil lawsuits and multi-agency (most recently the SEC) investigations threaten employer’s economic welfare. Nonetheless, allowing states to opt-out of immigration agreements may lead to further complications in the future for American businesses.

While many Americans remain divided on a national Dream Act (deportation stay for undocumented college students), few agree that state enforcement over immigration laws further confuses an already troublesome issue. The solution is to find a nationally supported immigration policy that allows American businesses to thrive, but keeps our borders secure. Critics of AB 1081 believe California will become a “refuge” for undocumented aliens. Currently, our broken immigration system has conflicting policies on employee screening, visa application/renewal, and undocumented criminal deportation. Until the politics of immigration subside, businesses should seek legal assistance to ensure their compliance with ever-changing immigration policies.

Immigration Compliance Group has real-world experience in  business and employment-related immigration and compliance matters, ensuring your company’s future is secure. For more breaking immigration news signup to stay informed and contact our office at 562 612.3996 or email info@immigrationcompliancegroup.com.

By:  Timothy Sutton, Communications Editor

The Hamilton Project, at the Brookings Institution held a forum on U.S. immigration on May 15, 2012. US Davis Economist, Giovanni Peri, purposed a radical overhaul to the entire immigration system. In short, Peri proposed a national auction system wherein employers bid for employee visas and proceeds of these sales fund local healthcare and education. The auction prices would be set with a reserve to ensure a minimal guaranteed income stream. Uncapped, the market would dictate the number of visas issued annually. This proposal seems to find a common ground between business needs and government regulation, benefiting the low-skilled labor market.

Auctioning low-skilled labor visas should help reduce the population of roughly 11.5 million illegal immigrants. Employers will be able to hire a legal workforce up to the point where auction prices for visas offset low wage savings. At that time, I-9 audits and workplace raids should continue to deter further hiring of illegal immigrants. This larger, stable and legal temporary workforce will help stabilize the economy. Changes are welcomed for companies like 3M that recently experienced a “brain drain.” 3M has been outsourcing science and technology jobs to Asia, citing the instability of the low skilled labor market they rely on to support their laboratories, manufacturing, research and development.

While Peri’s proposals are likely years away from actually being introduced into legislation, public officials like Senator John Cornyn continue to push for business friendly immigration. Senator Cornyn recently introduced legislation that would add 85,000 H-1B temporary visas issued annually to foreign-born engineers, mathematicians, scientists and other high-tech workers. Cornyn reminded the Senate, “We have to remember how this country was built. All of us are sons and daughters of immigrants that showed up here and made our way. We’ve cut off that flow.”

For continued coverage of proposed immigration reform and legislation, as well as the latest developments in immigration politics, subscribe to our blog and immigration and I-9 newsletters here.

Interested in staying current with I-9/E-Verify news and issues?  Check out our group on LinkedIn.

H.R. 3012, the Fairness for High-Skilled Immigrants Act, introduced on September 22, 2011 by Rep. Chaffetz (R-UT), eliminates the employment-based per-country cap entirely by fiscal year 2015 and raises the family-sponsored per-country cap from 7% to 15%.

On 10/27/11, the House Judiciary Committee held a markup and H.R. 3012 was reported favorably out of committee by a voice vote. An amendment from Rep. Lofgren (D-CA) that would make adjustments to the three year phase-in period was accepted. H.R. 3012 must next be scheduled for House floor debate which may occur in the next few weeks.

On 11/29/11 the House passed H.R. 3012, the Fairness for High-Skilled Immigrants Act by a vote of 389-15 with no additional amendments. The measure now moves on to the Senate for consideration.

Sen. Charles Schumer, D-N.Y., who heads the Senate Judiciary panel on immigration, said he planned to move the bill as quickly as possible in the Senate, “where we expect it to find overwhelming support.” He said the legislation would “remove outdated constraints that prevent us from attracting the kind of innovators who can create job growth in America.”

Crystal Williams, executive director of the American Immigration Lawyers Association, said the measure “makes the system a tiny bit fairer” and does “demonstrate that Congress can do something on immigration, however small.”  She cited estimates that while someone from England might wait two or three years for a green card, an Indian could conceivably be on the waiting list for decades.

Under current law, no more than 7% of the visas issued per year in any one immigrant visa category can go to natives of any one country.  On the employment-based immigrant visa side, natives of India and China face longer waits than natives of other countries, because natives of those countries send more high-skilled immigrants to the US than any other country.  On the family-based immigrant visa side, natives of Mexico and the Philippines face longer waits than natives of other countries, because there are more immigrants and US citizens with family ties to those countries than there are to other countries. HR 3012 will eliminate, over a three year period, the per-country limit in the employment-based system, but it will not raise the number of legal immigrants allowed to enter the USA.

We will keep you posted on developments as this bill moves to the Senate.  We link to an excellent article on the subject.