IMMIGRATION AFTER THE PRESIDENTIAL ELECTION
By Michael H. Markovitch on November, 23, 2016
Now that the presidential elections are over, what will the likely impact be regarding immigration? One of the biggest issues raised by President-elect Trump throughout his campaign was immigration. Trump’s immigration position paper was rather detailed and specific. Simply put, it calls for a significant reduction in the issuance of green cards and a huge increase in immigration enforcement. Here are some of the highlights from his immigration position:
1. Border Wall: The completion of a border wall, or at least 1000 miles of it (there are about 700 miles of walls and barriers currently). While this wall could be virtual, Trump “sold” it as a physical barrier. His border wall is meant to address illegal border crossings that began subsiding a decade ago, and are now near their post-1970 historical low-point. There is a perception of chaos on the border which may not reflect reality, but perception is all that matters in politics. The best way to further reduce unlawful immigration would be to create a low-skilled guest
worker visa program or expand existing ones, so to have Legalized Aliens. Trump’s position paper precludes such a policy option.
2. Nationwide E-Verify: Mandated nationwide E-Verify for all new hires in the United States as a means to exclude illegal immigrants from employment. E-Verify is an electronic eligibility for employment verification. It checks a new hire’s identity information against government databases to approve or deny them employment. E-Verify will add considerable more time to employers’ annually in dealing with the I-9 form. This may result in unintentionally denying and delaying many American workers legal employment due to inaccuracies, boosting the black market in identity documents, and costing billions in taxpayer and economic costs to implement. E-Verfiy is also unenforced and ineffective in reducing the wage magnet in states where it is already mandated. E-Verify will fail to live up to its expectations and may be followed by calls for a national biometric identity card to seal gaps in the system.
3. End Birthright Citizenship: Under United States law, U.S. citizenship is automatically granted to any person born within and subject to the jurisdiction of the United States. Trump’s proposal would most likely require a constitutional amendment. Birthright citizenship has aided in the assimilation of generations of immigrants, in contrast to the experiences of assimilation in European nations without birthright citizenship. If implemented, jus sanguinis (citizenship through blood relations) would replace jus soli as the most important citizenship law of the lands.
4. End DACA: President Obama’s executive action for unlawful immigrants brought here as children gave temporary work permits and relief from potential deportation (not a path to citizenship) to approximately 665,000 people. The continuation of this program depends on the actions of the President. Although this is not spelled out in his immigration position paper, it is likely that Trump will decline to continue the program by stopping the periodic renewals required by law, thus opening up this population to deportation. Trump’s Administration will also now have access to the identities of all the beneficiaries of DACA who had to submit their personal information to benefit a source of information that could be used to more efficiently deport them. This has the potential to be a heart-wrenching humanitarian disaster for the DACA beneficiaries, their families, and those of us who count some of them as friends.
5. Mandatory Detention: Detain all illegal immigrants apprehended while entering the United States. This policy is already partially implemented but could be greatly expanded. It would require new detention facilities similar to those used to detain unauthorized alien children from Central America at a serious economic and humanitarian cost.
6. Immigration Moderation: Trump’s paper calls for a “pause” on the issuance of new
green cards to workers abroad so that “employers will have to hire from the domestic pool of unemployed immigrant and native workers.” There were approximately 160,000
employment-based green cards issued in 2015. 85 percent of them were allocated to workers already in the United States on other visas. The other fourteen percent were distributed to workers abroad. The government also issued 645,560
family-based green cards in 2016, all of which allow recipients to work in the United States. Sixty-one percent of these family-based green cards went to immigrants who were not in the country on another visa. Depending on analysis, this provision could cut between about 140,000 and 500,000 green cards annually.
7. Increase Prevailing Wages For H-1Bs: This policy proposal will reduce the number of legal, skilled temporary migrant workers. Just over 124,000
H-1Bs were approved in 2015 for initial employment in the United States, with 85,000 of them for employment in firms and the balance for non-profit research institutions. These workers have an average salary of $75,000 so they do not compete with low-skilled America workers. If the minimum salary for
H-1B visas was increased to $100,000, then the number of H-1Bs hired by private firms would decrease. The 75th percentile for wage compensation for H-1B workers is $81,000. Even including all of the petitions for high-wage workers that are rejected each year, this reform would significantly shrink the number of H-1B visas issued at an enormous economic cost. The H-1B system is also the feeder to the employment-based green card, so any change could disrupt future-flows even if no other changes are made.
8. Requirement To Hire American Workers First: This policy would increase the regulatory cost for American firms hiring skilled foreign workers in specialty occupations. Congress considered this policy for the H-1B visa in 1990 and subsequently rejected it because the regulatory costs would be too high. If Trump is the anti-regulation candidate he claims to be, then he’ll likely also reject this provision.
9. Refugee Program for American Children: This policy would raise the standards for refugees and asylum seekers and minimize alleged abuse and fraud. Assuming the worst case scenario, Trump’s policy proposal would decrease humanitarian immigration by seventy percent if “trumped”-up fraud statistics are to be believed. That policy, if in place in 2016, would have cut the number of refugees by almost 60,000 under the worst case scenario.
While it is this author’s position that several parts of Trump’s immigration plans will be difficult to enforce, one must be aware and try to plan accordingly as there will be significant changes in the near-future.
While immigration attorneys cannot predict the exact changes and reforms to the immigration and nationality laws, an experienced practitioner should be able to provide advice and strategize with their clients as to certain steps which should be taken now rather than waiting for the ax to fall.
