Over a year ago, Donald J. Trump was inaugurated and set out to make good on campaign promises that would deport illegal immigrants and seek funds to construct a wall on the southern border. Now, after a year of presidential action on immigration, details of the president’s restrictive agenda have emerged.
Even as both sides of the aisle, and indeed President Trump himself, have expressed broad-based support for legal immigration and Dreamers, and a majority of the country seems to support more ameliorative immigration policies, the Trump Administration continues its heavy-handed approach to legal immigration, treating immigration as a zero-sum game. Over the past year, the immigration bar has experienced a number of unexpected onslaughts on legal immigration, each of which might and should be reversed by thoughtful, bi-partisan Congressional action.
- Travel Ban. The Trump Administration’s initial travel ban, banning the entry of all citizens from six predominantly Islamic countries, was enjoined in several U.S. District Court proceedings, including President Trump’s new proclamation of Sept. 24, 2017. On Nov. 13, the Ninth Circuit Court of Appeals allowed the travel ban to be enforced except with respect to aliens with a “bona fide relationship with a person or entity in the United States.” On Dec. 4, 2017, the U.S. Supreme Court stayed the injunction completely, upholding the ban on nationals from Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen and Somalia from being issued immigrant or non-immigrant visas. Exempt are existing Permanent Residents or anyone already admitted into the United States, dual nationals and those already granted asylum or admitted as refugees, Iranians coming to the U.S. to study or for training on F, M and J non-immigrant visas and certain Venezuelan government officials and their families.
- “Extreme Vetting.” As promised, the Trump Administration has taken significant steps to implement so-called “extreme vetting,” implying that existing vetting was not already extreme. In reality, all visa applicants are already subject to multiple vetting procedures through every state, local, national and foreign database. Another Trump Administration Memorandum, which eventually led to a new regulation, required that visa applicants provide far more information, including travel, employment and address history for the last 15 years, sources of funding for the travel, and social media platforms and handles for the last five years. Such “extreme vetting” will undoubtedly create longer delays for applicants.
- “Buy American, Hire American.” President Trump issued Executive Order “Buy American, Hire American” dated April 18, 2017, stating his intention to reform the H-1B visa program. While legislative action is required to substantively change the H-1B law, the Department of Labor (DOL), in response to the directive, announced that it would strenuously increase H-1B audits and investigations for violations of the H-1B visa program. It is also likely that prior to the next so-called “H-1B visa lottery” starting on April 1, 2018, the Trump Administration will prioritize which H-1Bs are given the opportunity to be adjudicated for one of the limited 65,000 H-1B visa numbers plus an additional 20,000 for advance degree graduates of U.S. universities. On Dec. 14, 2017, DHS announced that it intends to abolish the 2015 provision that allows spouses of H-1B high-skilled visa holders waiting for green cards to obtain an Employment Authorization Document (EAD) as H-4 dependents. Worse, this executive order has made the Citizenship and Immigration Service (CIS) far more prone to challenge visa petitions in general on highly technical grounds and to issue unnecessary Requests for Evidence (RFE).
- No Deference to Prior Decisions. The CIS also announced that it was rescinding its long-standing deference policy whereby CIS adjudicators give deference in deciding petitions extending temporary work visa status to the prior approval of the original petition in cases covering the same position and employer. As a result, H-1B and L-1 extension petitions will be treated like de novo petitions, thus requiring extensive documentation, again often resulting in repeated RFEs.
- International Entrepreneur Rule. On Dec. 1, 2017, the U.S. District Court ordered DHS to implement the Obama administration’s International Entrepreneur Rule, which gives the DHS discretion to grant an initial stay up to 30 months to facilitate a qualified entrepreneur’s ability to enter the U.S. to oversee start-up entities.
- Potential Discrimination and Fraud Action. The DOJ announced on Oct. 10, 2017, that pursuant to a Memorandum of Understanding between the DOJ Civil Rights Division and the Bureau of Consular Affairs of the U.S. Department of State (DOS) to protect U.S. workers from discrimination, information on employers that may engage in unlawful discrimination through employment-based visas such H-1B, H-2A and H-2B visas may be shared. Enforcement would be through the anti-discrimination provisions of the Immigration and Nationality Act, which prohibits citizenship and national origin discrimination. Furthermore, in February 2017, the DHS Employees’ Rights Section (IER) launched its Protecting U.S. Workers Initiative aimed at bringing enforcement action against companies that discriminate against U.S. workers in favor of foreign visa workers.
- The 90 Day Rule regarding misrepresentations based on conduct in the U.S. On Sept. 1, 2017, the DOS provided new guidance to U.S. Consular officers providing that if an alien engaged in conduct inconsistent with his or her non-immigrant status within 90 days of entry, the Consular Officer or CIS may presume that the applicant’s representations were willful misrepresentations. Such conduct includes engaging in unauthorized employment, enrolling in a course of academic study and marrying a U.S. citizen or Lawful Permanent Resident. The presumption applies even though a nonimmigrant’s plans may have changed or evolved after original admission.
Unfortunately, these highly restrictive developments are just a preview of coming attractions, which will bring less certainty and more instability to businesses and foreign national employeesand their families. At every juncture the Trump administration is taking action to further restrict legal immigration under the premise of the Buy American/Hire American executive order that presumes legal immigration, is a zero-sum game. Given the high-level influence of well-known immigration restrictionists that have been appointed to key policy positions within the White House and the three immigration agencies, these broad-based attacks through regulatory changes and informal policy changes are accelerating.
Ultimately, Congress will need to act to restore the order and stability required to support a growing economy, though no action is expected before the mid-term elections in November. After the mid-term elections have passed and the new class of representatives is installed in Congress, Congress will need to take up the immigration debate again and see it through to its proper conclusion to achieve sensible, fair-minded immigration reform that considers the economic needs of our growing economy.
Until then, immigration practitioners and their clients will have to adapt to this brave new world and recognize that what was once routinely approvable in terms of visa eligibility may now be challenged on highly technical and even preposterous points, which makes each case more complex and time consuming. Immigration attorneys must advise their clients that past qualification guidelines and timelines no longer apply. Additionally, more immigration attorneys will need to push back and litigate key issues. And finally, the silent majority in favor of reasonable levels of immigration that support our economic interests should become vocal and press their senators and representatives to resist the restrictionist minority’s immigration agenda.
Charles C. Foster, Chairman of Foster, Houston, Texas; bachelor’s and JD – University of Texas; immigration policy adviser to Presidents Bush and Obama, and past national president – American Immigration Lawyers Association.