Immigration in the Trump Era

The election dust has settled and the candidate who based his campaign on tough immigration enforcement is in the White House. While change takes time, just seven months into President Trump’s term, the nation is starting to fully understand the reality of working with the Trump administration. Indeed, for the first time in American history, a President has put immigration as the very first order of business for the executive branch; just days after his inauguration, the President issued the travel and refugee ban. Below we summarize the big changes and most important developments in immigration over the past several months and provide a broader picture of the state of immigration-related affairs. There is not an area of immigration that has remained untouched or unmentioned: undocumented immigrants, skilled workers, family-based claims, refugees, and border security protocols. 

Clearly, there have been drastic revisions to the treatment of undocumented immigrants in this country. Border security has been tightened, regardless of whether “The Wall” is being built. While the total number of border crossings have dropped dramatically since January 2017, Border Patrol officers have been successful at apprehending a greater percentage of foreign nationals who attempt to enter the country illegally. Those caught are no longer released into the U.S. with a court date, but are being detained in jail while they await their immigration hearing. This includes children and families. Expedited removals are increasingly employed, which limits these aliens’ ability to make an asylum claim or receive representation. Furthermore, U.S. Immigration and Customs Enforcement’s (ICE) authority to arrest and remove any foreign national who is unlawfully present or has committed a crime is at its peak. Immigration raids and sweeps have resulted in thousands of people being arrested and deported, some of whom have been here for years and have strong ties to America. Undocumented immigrants who have been cooperating with ICE for years are being arrested when they appear for their check-in. Several local police precincts and even some states have agreed to assist in identifying immigration violators, while the federal government has threatened sanctuary cities if they refuse to cooperate with DHS officials. Successful court challenges to any of this have been scarce. In short, it is not a good time to attempt to enter the country illegally. And, if you are in the United States without status, you should have a plan of action should you or a family member be arrested by ICE. Such a plan must include identifying good lawyers or pro bono advocacy groups and keeping their information close by at all times.   

The other major campaign platform for President Trump was reducing Muslim immigration. While Trump distracted the media and the public with the travel ban, some U.S. consulates in Muslim-majority nations were arbitrarily denying visas. These were countries not included in the ban and received very little notice. Muslim foreign nationals should expect increased processing times, heightened security checks, and unwarranted denials at consulates over the next few years. Because of the nonreviewable discretion of consular officers, this is a reality that is unlikely to change anytime soon. So, if you are applying for a visa in Pakistan or Saudi Arabia, for example, you should ensure you have a strong application to establish your eligibility for the visa you seek. If you are from a country identified in the travel ban you may want to keep international trips to a minimum, at least until the ban expires. 

Unlike his stance on undocumented immigrants and Muslim foreign nationals, the President’s opinion on H-1B visas has been ever-changing. At one point while on the campaign trail, President Trump came out in strong support of the H-1B visa – even proposing to raise the annual numerical limit – after acknowledging how high-skill workers drive the nation’s economy. President Trump even met with industry leaders in Silicon Valley who made the case for more visas. However, instead of pushing for legislative changes to the numerical limit, the Administration is attempting to undercut small businesses seeking to hire skilled labor and transfer those H-1B visas to giant tech companies who can pay highest salaries. Just recently, there has been an onslaught of H-1B requests for evidence challenging the wage to be paid to foreign nationals. For the foreign students considering the H-1B as a viable option after graduation, this visa is likely to become increasingly restrictive and difficult to get for lower salary jobs. 

The PERM labor certification process for employment-based green cards is also being reviewed for fraud prevention, with the Administration encouraging the Department of Labor (DOL) to step up its enforcement measures against employers who underpay foreign workers. However, the DOL does not have the requisite resources to be able to adequately address any policy proposals that come down from the White House, and as of yet, processing times and audit rates for PERM applications have not seen any significant increase. For now, it is business as usual for filings with the DOL, but if Congress increases its funding in an upcoming appropriations bill, we could see intensified screening of applications and more site visits. 

Meanwhile, USCIS has intensified its scrutiny given to all filings, from I-140 immigrant visa petitions to work card extensions. The agency is reviewing cases more closely, which has increased the number of requests for evidence (RFEs) issued. This, in turn, increases average processing times for all applications. Several forms have been revamped to collect more information on each applicant. Site visits for H, L, and R visas are up as well. Of course, these actions require more money and time for each case filed, and we should expect the agency to demand increased funding to better support these actions. 

The admission of refugees has been limited over the past seven months as well. The expedited processing of illegal entries has precluded some Northern Triangle (Guatemala, Honduras, El Salvador) refugees from filing asylum claims, and the travel ban included a temporary halt to Syrian refugees. It is no secret that President Trump wants to reduce the overall number of refugees accepted into the U.S. on an annual basis. To be fair, the U.S. policy on processing and accepting refugees is not above scrutiny – our program needs to be constantly evaluated to ensure that it is both safe and accomplishing its purpose. But the proposal to reduce refugee admissions comes at a time when the number of displaced persons is rising worldwide. Refugees, especially from Syria, are likely to find the process more laborious and delayed as we move forward. 

In all, it is an increasingly difficult time for immigrants, immigration lawyers, and immigration advocates. Most of what the Administration is doing is within the bounds of the law and will be very difficult to challenge in the federal courts. That means that tough enforcement is the status quo for a while and the U.S. immigration community needs to react accordingly. Pro-immigration advocates must find ways to resist restrictive policy and mean-spirited practices that ultimately hurt American businesses and communities.