Immigration and Trump - What Now?

So....... the unimaginable has happened and Donald Trump will be the next President of the United States.  A key element in Trump's candidacy was immigration reform, including his oft-repeated promised to build a wall along the US southern border, and to deport 11 million undocumented immigrants.

Trump's position paper on immigration states that his vision is to

• Prioritize the jobs, wages and security of the American people.
• Establish new immigration controls to boost wages and to ensure that open jobs are offered to American workers first.
• Protect the economic well-being of the lawful immigrants already living here by curbing uncontrolled foreign worker admissions
• Select immigrants based on their likelihood of success in the U.S. and their ability to be financially self-sufficient.
• Vet applicants to ensure they support America’s values, institutions and people, and temporarily suspend immigration from regions that export terrorism and where safe vetting cannot presently be ensured.
• Enforce the immigration laws of the United States and restore the Constitutional rule of law upon which America’s prosperity and security depend.

In speeches, Trump has called for tighter controls on foreign nationals entering the US, increasing enforcement of employers' obligations to check work authorization, and prioritize the hiring of US workers. He also states that he would immediately reverse President Obama's Executive Actions.

The Wall

Many commentaries have pointed out the financial and logistical problems with the plan to build a wall. Although Republicans have a majority in Congress, it will be a long time - if ever- before they would approve the cost of a wall. Yes, Trump says Mexico will pay for the wall but, even if that were to happen, they would hardly pay in advance. Many news outlets have analyzed the Wall proposal in detail, and I recommend these articles, among others: BBC, IB Times

Deportations

Equally expensive and difficult is the prospect of rounding up 11 million people and removing them from the country.  The New York Times has an article that explains the impracticability of the deportation in more detail.

Trump estimates that it would take 2 years to complete this project. However, there are now 400,000 deportations a year under the Obama administration, so how could this increase to 5.5 million annually? Hiring and training enough federal agents to find these immigrants would take months or years, and each immigrant is entitled to due process of law, not summary dismissal from the United States.

DACA

Deferred Action for Childhood Arrivals (DACA) is one program that will almost certainly end with the new administration. This program grants permission to certain young people (sometimes called "Dreamers") to stay in the US and work even though they are undocumented.  These people were brought to the US as children by their parents, have no criminal history and have attended school.

The deferred action is a result of an Executive Order by President Obama, and has granted relief to over 700,000 young people. Trump could repeal this Executive Order, immediately ending the program. In addition, each DACA applicant had to file forms with the US government providing their personal information, including addresses. There is a real fear that this information could be used to track down and deport these young people.

Treaty-Based Visas.

Donald Trump has made no secret of his disdain for trade deals, including NAFTA, that the United States has made with other countries. If he dismantles NAFTA treaty, it could mean an end to the TN visa category, which allows Mexican and Canadian professionals to apply to work in the US temporarily.

Other treaty-based visa categories include E-1, E-2 and E-3,  and the H-1B1 (NOT the well-known H-1B).  These result from treaties between the US and individual countries. The impact of these treaties is small and unlikely to be the target of a Trump attack. 

Other Business Visas

Trump has criticized the H-1B worker program in the past and may seek to impose further restrictions. However, the H-1B political lobby is well-funded and very powerful, so there would be considerable opposition to this. In addition, any change to our immigration laws would require a Congressional approval and the lengthy rule-making process. 

Family Immigration

As above, any change to existing laws would be a long and difficult process. The only clear comment that Trump has made in this area is to state that he would abolish birth-right citizenship. This grants US citizenship to any child born in the US. The right is granted by the 14th amendment to the US Constitution, and most legal scholars believe that ending it would require another constitutional amendment. A small minority of scholars consider that and Act of Congress would be sufficient, but that's still an Act of Congress!

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​I will be monitoring any legislative developments closely, and will publish updates as soon as there is more information. In the meantime, if you have questions about this bulletin, or any immigration matter, feel free to contact me at elaine@martinvisalawyer.com.