Note: This article was originally published by Who’s Who Legal
In 2017, the Trump administration assumed control over the White House with an explicit immigration agenda that included building a border wall and passing laws aimed at limiting lawful immigration. The policy agenda was quickly put into action when the president issued numerous executive orders during his first month in office that put immigration at the centre of his presidency. Trump has continued to back restrictionist immigration legislation throughout his first year in office. Although no formal legislation has been signed into law as of the writing of this article, the president has successfully instilled restrictionist cultures at the various federal agencies in charge of US immigration through his executive power, signalling that his anti-immigrant position appears to be more than empty rhetoric. Immigrants, individual states, and pro-immigration advocates have been forced to turn to the judicial branch to seek relief.
The Trump immigration agenda in 2017 initially focused on attacking the weakest, most vulnerable immigrant populations. The initial travel bans of early 2017 predominantly impacted refugees and asylum-seekers from unstable and repressive Muslim countries. Later in the year, President Trump ordered an end to the Obama-era Deferred Action for Childhood Arrivals (DACA) programme that protected undocumented immigrants who arrived in the US as children. As of the writing of this article, a federal district court judge has issued an injunction to the end of the DACA programme pending the result of a lawsuit that seeks to keep the programme alive. The Trump administration attempted to end DACA in spite of the fact that a majority of Trump supporters actually favoured the continued existence of the DACA programme. The Trump administration has also eliminated the Temporary Protected Status (TPS) programmes for vulnerable groups of individuals from Haiti, Nicaragua and, most recently, El Salvador; the administration also sought to eliminate TPS status for Hondurans as well, but then acting DHS secretary Elaine Duke extended the Honduran programme to 5 July 2018. Moreover, in an effort to further to coerce so-called “sanctuary cities” into complying with his draconian immigration agenda, President Trump threatened major metropoles with the cessation of federal funding unless they agree to actively cooperate with US Immigration and Customs Enforcement (ICE) officials in the detention and removal of undocumented individuals. Although the Trump administration promised increased federal funding as a reward for compliance, cities that have complied have yet to receive promised funds. Generally speaking, the Trump administration has sought to bring carnage to lives of the most vulnerable immigrants in our country – those who have sought refuge in a country that was founded on its ethos of welcoming the tired, poor, and huddled masses yearning to breathe free.
The Trump administration has also devastated employment-based immigration, although through less explicit means. In February 2017, President Trump criticised the US’s current employment-based immigration system and suggested that it attracted and retained only “lower skilled immigration”. The solution, claimed Trump, was to transition the US to a “merit-based” immigration system that would attract and retain only the best and brightest foreign talent to the US. While the characterisation of the current US system as one that favours lower skilled immigration is inherently false – a vast majority of visa and green card categories that currently exist are for individuals that would necessarily be classified as high-skilled, specialised and/or professional workers – one cannot disagree that seeking to attract the best and the brightest talent is a worthy goal. President Trump’s corporate immigration policies claim to protect US jobs, with the simplistic assumption that any job given to a foreign worker could and should have gone to a US citizen. However, this ignores the realities of corporate immigration. If US workers were so readily available for these positions, employers would not bother with the added expense, uncertainty and lengthy processing time to petition foreign employees for work authorisation. In fact, the actions of the Trump administration have actually worked to consistently undermine the ability of US employers to attract and retain the best and brightest talent.
President Trump’s Buy American and Hire American Executive Order directed relevant federal agencies to “rigorously enforce and administer the laws governing entry into the United States of workers from abroad”; to “propose new rules and issue new guidance … to protect the interests of United States workers in the administration of our immigration system”; and to “suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries,” among other items. Although new legislation has not been enacted to date, the “rigorous enforcement” of immigration laws and the “proposed new rules and new guidance” from relevant federal agencies has created an atmosphere of extreme uncertainty for US employers and foreign national professionals alike. Immigration law practitioners quickly understood that the “rigorous enforcement” of immigration laws actually meant that government agencies would actively seek to delay, deny, and otherwise obfuscate immigration applications. From early 2017, Requests for Evidence (RFEs) have been issued by US Citizenship and Immigration Services (USCIS) with increasing regularity – and this assertion is based on more than simply anecdotal evidence. The issuance of RFEs for H-1B visa petitions filed during the most recent filing period grew by 44 per cent compared to last year, and H-1B denials have increased approximately 10 per cent since last year (as of November 2017, with approximately 80,000 petitions still pending). Moreover, these RFEs and denials have often included incorrect or improper interpretations and applications of US immigration laws, and/or ignore or mischaracterise evidence submitted in immigration filings. Previously unthinkable delays, complications, and denials transcend petition adjudication with USCIS. Even after USCIS has approved an immigration petition, US Embassies and Consulates abroad have found ways to challenge and deny visa issuance required for foreign nationals to travel to the US to take up their offered employment positions. While a culture of “no” was pervasive among immigration adjudicators after 9/11, the Trump administration has fostered a culture of “got you”. In other words, we now see that immigration officers are finding ways not only to say “no”, but also to close the door on legitimate immigration cases using technicalities and broad deferential, non-reviewable authority. Collectively, the culture and actions of the federal agencies charged with executing US immigration laws have created an atmosphere of fear and uncertainty for US employers and foreign nationals alike.
Unfortunately, the Trump-era immigration policy has been marked by unpredictability and exclusion. In the EB-5 investment immigration arena, President Trump’s involvement complicates a programme that already has plenty of uncertainty. A broad overhaul of the programme, including an increase in the minimum investment amount, new government oversight authority and new definitions of targeted investment areas has yet to occur, despite two years of proposed legislation and government regulations. Instead, the programme has been extended in short-term increments without change, often at the eleventh hour. Although President Trump has refrained from commenting on EB-5, his son-in-law Jared Kushner is an active participant in the programme, using EB-5 foreign capital for his real estate development projects. These events loom over an existing programme subject to the same inconsistent and restrictive adjudications seen throughout the immigration service. The uncertainty of the future of the EB-5 programme is particularly troubling, as it is a vehicle for billions of dollars of investment into the US, that also includes the creation of countless employment positions for US workers.
In the end, rather than protect US workers, the recently enacted policies have marred the reliability of the US as a sound investment and business climate. Indeed, if US employers cannot have a modicum of certainty when it comes to their ability to retain the world’s best and brightest talent, it will only be a matter of time before they relocate to a country that can offer the sort of reliability that business depends upon. If these restrictive policies remain, it could have extremely serious long-term implications for the future of the US economy. A recent study has shown that the enrollment of new foreign students declined an average of 7 per cent this past year. Foreign student enrollment is a major contributor to the US economy, directly generating US$39 billion in revenues per year – this is not to mention the indirect revenues generated by the millions of foreign students in the US who are also active consumers. Yet in addition to the loss of direct revenue from the loss of foreign students, another, more troubling concern arises: without this revenue, many US universities are being forced to cut programmes, and lose professors and instructors who are seeking to benefit American students and therefore improve the US workforce for years to come. If such programmes and resources continue to be cut from our universities, it is unclear how US workers can be developed and protected in the long term. This single example should serve as an important reminder that a diminished, restrictive immigration policy can have far-reaching impacts that can ultimately undermine the policy’s stated protectionist goal.
Still, as new legislation has yet to be passed and enacted into law, there is hope that US immigration policy can potentially be repaired and improved. In summer 2017, President Trump ultimately came out in support of the Reforming American Immigration for Strong Enforcement Act (the RAISE Act), which, if enacted, would reduce the number of worldwide family-sponsored immigrants to a maximum of 88,000 for each fiscal year. The RAISE Act would also: eliminate preferences for the extended and adult family members of US residents, including adult parents of US citizens, adult siblings of US citizens; reduce the number of refugees accepted by half per year; and completely eliminate the Diversity Visa Lottery (which allocates green cards to applicants based upon metrics related to country of origin). Nevertheless, the bill has not received the widespread support needed to be voted into law.
Until new legislation is enacted, the government’s restrictive and contrarian immigration policy can still be challenged and overcome through persistent and effective legal counsel. Immigration lawyers throughout the US regularly share information on developing adjudication trends, as well as solutions to the new challenges as they become apparent. We are bringing legal challenges to decisions that are made without proper bases in law and fact. Perhaps most importantly, we are actively advocating against restrictive laws and policies that will cripple our immigration system, as well as the American economy.
A year ago we published an article that concluded with a prediction that increased difficulties for corporate immigration matters were on the horizon. Unfortunately, this prediction has come to pass in many respects. Yet, it is our opinion that the US remains one of the best nations for business investment and operations, and that the current challenges to US immigration are a temporary aberration – not the new normal. How long this temporary aberration will last cannot be known with certainty, but the progress of legislative reform over the next year, as well as the upcoming 2018 mid-term elections, should provide clearer indications.