When it comes to immigration, we’ve all heard a lot of rhetoric regarding work visas, E-Verify, walls, and deportation. But what does the implementation of President-elect Trump’s 10 immigration goals mean for everyday workers and employers? There is one goal that will have enormous impacts on how human resource professionals will do their job:
9. Turn off the jobs and benefits magnet. Many immigrants come to the U.S. illegally in search of jobs, even though federal law prohibits the employment of illegal immigrants.
Practically speaking, what does this mean? As you know, in many cases, employers deal directly with the immigration system and file visa petitions on behalf of foreign workers. They also check I9s and have to keep track of them. Put simply, a Trump presidency presents a scenario that will dramatically change the status quo.
As immigration and employment attorneys we’re getting a lot of questions from our clients. Here’s what we’re telling them.
E-Verify for hiring
It is likely that Trump will make the E-Verify system mandatory. E-Verify is a database that employers can access to check a prospective employee’s immigration status. In theory, the system will tell the employer if the applicant is allowed to work in the United States. Opponents have argued that E-Verify has a high error rate and its effectiveness is debatable.
Currently, the system is not required nationally. Alabama, Arizona, Georgia, North Carolina, Mississippi, South Carolina, and Utah require employers with 15 or more employees to use the system. Pay close attention to upcoming changes with this system.
Nonimmigrant temporary work visas
Our areas of legal expertise often deal with applications for nonimmigrant work visas, which allow different types of workers — from seasonal agricultural laborers, to outstanding professors — to live and work temporarily in the U.S. Referred to as nonimmigrant visas because of their temporary nature, they provide an attractive opportunity to many foreign nationals due to less stringent eligibility standards and shorter approval wait times.
The President has incredible latitude when determining how many nonimmigrant visas will be issued each year, as well as interpreting who is eligible to receive one. When it comes to the number of nonimmigrant visas issued annually, the Attorney General, a presidential appointee, is the government official charged with setting the number. The U.S. Code §1184 states, “The admission to the United States of any alien as a nonimmigrant shall be for such time and under such conditions as the Attorney General may by regulations prescribe.”
Employers and immigrants reading this article might be asking themselves what specific visas could be affected by Trump’s presidency. While the number of categories of nonimmigrant visas is too large to detail in one article, here is a short list of some of the non-immigrant visas that could be affected:
NAFTA-TN visa – During the campaign, Trump targeted global trade deals as American job killers, and set his sights squarely on the North American Free Trade Agreement (NAFTA). Brokered under the administration of George H.W. Bush, NAFTA eliminated tariffs on goods moving between Canada, the U.S. and Mexico. One of the byproducts of the deal was a visa program that allows certain professionals to travel more freely among the three countries for employment purposes. The types of workers granted NAFTA-TN visas are typically employed in specialty occupations such as hotel management, architecture or data processing. While it’s unclear exactly what will happen once Trump is in office, he has said he would like to either renegotiate the deal or terminate it all together. What’s more, withdrawing from the treaty doesn’t require the approval of Congress. Rather, he only has to give Canada and Mexico six months notice. This could have the effect of eliminating the NAFTA-TN visa permanently.
H2A and H2B visas – Both of these visas apply to foreign workers who come to the U.S. to perform seasonal work. The A visa is granted to agricultural workers, the B visa is granted to all other seasonal workers. In the case of both H2A and H2B workers, the application process involves a U.S. employer obtaining special certification from the Department of Labor. This is done to ensure that any visas issued under these categories won’t affect the jobs or wages of U.S. citizens. While it remains to be seen whether or not Trump intends to keep this program intact once in office, it’s worth noting in addition to the Attorney General and Secretary of Homeland Security, his appointment to head the Department of Labor will also directly affect this class of visas.
F-1 student visas – Most foreign students studying at American colleges and universities are limited when it comes to getting permission to engage in work. In some cases, they are not eligible to obtain work off campus. Certain exceptions to this law have been extended to students affected by severe economic hardship beyond their control, such as in the case of Syrian students affected by that country’s civil war.
Qualifying Syrian students are allowed to work longer hours off campus, while at the same time carrying a reduced course load. Currently, this exception is set to expire in March of 2018. Once in office however, Trump could easily roll back this exception. While it’s speculative at this point what he will do, some of his fiercest pre-election rhetoric has focused on the recent influx of Syrian refugees and his intention to suspend all immigration from this country.
Immigrant visas (green card) — Workers who apply for this type of visa usually do so with the intention of attaining lawful permanent resident status. The immigrant visa is closely tied to the green card, which allows foreign nationals to live and work in the U.S. permanently. Obtaining lawful permanent status is also an important step toward an immigrant becoming a full citizen. Employment visas under this classification include the EB-5 investor visa, which is granted to foreign nationals who invest $1,000,000 in a U.S. business, the EB-3, which is granted to professional and skilled laborers, as well as the EB-1 for persons of extraordinary ability. While federal law determines the specific number of immigrant visas issued annually, Trump’s appointees with the Department of Homeland Security and Department of State will still have latitude when deciding who gets a visa, and how their applications are weighed.
Revoking Deferred Action for Childhood Arrivals (DACA) — Trump claims he is planning to revoke DACA immediately. Trump will not need congressional approval to repeal DACA. This executive policy was enacted by President Obama. DACA allows certain immigrants who entered the country illegally before their 16th birthday (usually as children with their parents) to stay in the country and receive a two-year work permit.
For HR, this means that young employees at many companies may lose their prior permission to work. In that case, HR may be tasked with the unpleasant job of terminating them.
Boosting wages for foreign visa workers — Finally, Trump has also said he wants immigration controls to “boost” wages so that employers won’t hire foreign workers at the expense of qualified domestic workers. As far as we can tell, Trump believes employers should be required to pay foreign workers more than their U.S. counterparts to incentivize them to recruit locally.
Conclusion
Whether you are an immigrant looking for a job, HR, or an employer who is looking to hire immigrants, many folks are understandably anxious over what the future will bring. It goes without saying that the policies of President-elect Donald Trump are sure to affect hundreds of thousands of immigrants and employers. To what degree they are affected, remains to be seen.
But it’s important to remember that even with the White House and both houses of Congress under Republican control, Trump’s power is not absolute. Just because Trump campaigned a certain way, and made promises, doesn’t mean they will all go into effect. So, make sure you do your research before taking action.