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Immigration Policy and President Trump – Deciphering and Reconfiguring our Immigration System

November 16, 2016

During his campaign, President-elect Trump had promised to place the issue of immigration at the top of his agenda once sworn in as president in January 2017. Some programs may be immediately repealed and others will require legislation by Congress to amend current rules and regulations. For the undocumented community, there will likely be a return to the margins of society and fear will abound as the new administration embarks on its plan to build a wall and corral and remove the alleged three million criminal aliens.

Initiatives and Programs that will Affect both Foreign Nationals who are Legally Present in the United States and Those Currently in the United States Under Color of Law:

Legal Immigration – While President-elect Trump has promised that among his 10 points of immigration reform, he will rework the immigration system, it is likely that legal immigration reform will take a back seat to more aggressive attitudes expressed concerning the undocumented in our country. It may take several years to reform the employment-based permanent immigration system. This would entail legislative action and even more time to implement. Therefore, the recommended best action that intending immigrants to the United States can take is to start their permanent residence cases as soon as possible. Results may appear to be uncertain at this time, in hindsight it may be a very wise decision to start the path to permanent residence now.

E-Verify – President-elect Trump has supported the E-Verify initiative which is currently voluntary for all U.S. employers and it is likely that he would mandate E-Verify in order to "protect jobs for American Workers". E-Verify is a web-based system for confirming employment eligibility. While Congress has tried to implement mandatory, across the board E-Verify several times, all such efforts have previously stalled or failed completely due to congressional gridlock. It is believed that while opposition to mandating E-Verify may occur, Mr. Trump could choose to issue an executive order mandating E-Verify for more than the current listing of certain federal government contractors or subcontractors. The E-Verify initiative is something that all employers should be watching out for in 2017.

Other initiatives by the new Administration might include:

Deferred Action for Early Childhood Arrivals/Deferred Action for Parents of Americans (DACA) – Established by the Executive Order of President Obama in 2012, DACA permitted undocumented individuals brought to the United States as children to obtain work permits and remain in the United States for an indefinite period with permission to renew these documents issued by U.S. Citizenship Services. Subsequently, the Obama administration established Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) for the parents of certain citizens and U.S. permanent residents. However, this program was never implemented due to a Federal Court challenge.

These two programs will most likely be immediately targeted by the new administration due to concerns that the current administration violated the Constitution without following appropriate rule making procedures. Even with DACA protection, the recipient of this benefit is still subject to deportation from the United States and not entitled to a court hearing in U.S. immigration court.

Work Permits for Certain Spouses of H1B and L1 Nonimmigrant Workers – Until February 24, 2015, the spouse of a nonimmigrant foreign national holding H1B or L1 nonimmigrant status was not permitted to work in the United States. Since the wait times for residence are long, the Obama administration introduced a rule permitting H4 and L2 dependent spouses to obtain employment authorization while in the queue for residence. It is unclear whether the new administration will retain this rule and how it might respond to pressure from the business community to continue to permit the spouses of these visa holders permission to work in the United States.

F-1 Student Visa Holders and STEM Optional Practical Training (OPT) – A recent change in the student regulations allowed foreign students majoring in the STEM disciplines (science, technology, engineering and math) to obtain an additional 24 months of practical training post–graduation. Employers are required to develop training programs and participate in E-Verify, which is currently a requirement for employers to engage students in optional practical training. This additional period of OPT may be challenged under the new administration's guidelines, which may be updated relating to student stays.

Provisional Waivers – Waivers of the three and ten year bar to foreign nationals who overstay in the United States may currently be granted to individuals with close permanent resident or U.S. citizen family members based upon hardship, allowing them to secure permanent residence in the United States. Through recent legislation and regulatory processes implemented by the Obama administration, hardship waivers could be secured prior to a foreign national's travel overseas to secure an immigrant visa. It is unclear whether the provisional waiver procedure will survive as President-elect Trump has often referred to a system he would like to create allowing individuals who are deportable to obtain lawful permanent residence status through a return to the home country – often referred to as "touchback."

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Koerner, Andrew S. Counsel Counsel 212.216.8097 VCard
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