Impact of the U.S. Presidential Election on Business Immigration Issues

Business Immigration Issues

Fausta M. Albi

December 20, 2016 12:00 AM

In an electoral cycle made infamous by a historic level of emotion and division, perhaps no issue sparks as visceral a reaction as immigration. It raises concerns that go to our core values as Americans. How do we remain competitive in a global economy yet provide opportunity and protect the wages of U.S. workers? How do we maintain national security without prejudicing civil rights and the efficient flow of goods and people across our borders? How do we support the historic American values of inclusion and welcoming “the tired, the poor, the huddled masses yearning to breathe free” without disadvantaging those already struggling to achieve the American dream? How do we define ourselves as a nation? How do we retain our identity?

On November 9, 2016, the country and world woke up to a President-elect Donald J. Trump, who will be governing a Republican- ontrolled Senate, a Republican-controlled House, and will be charged with the responsibility of filling at least one Supreme Court vacancy during his tenure, most likely with a conservative Justice.

President-elect Trump made a very restrictive immigration policy one of the central tenets of his campaign, a message that appeared to resonate with a significant portion of the electorate. His promise of change, of offering employment opportunities to a sector of American society that feels disenfranchised, may well have led to his victory. Regardless of how one feels about the results of the elections, business leaders must now turn their attention to where we are as a nation, where we are going, and attempt to structure business decisions accordingly.

“Business leaders must now turn their attention to where we are as a nation, where we are going and attempt to structure business decisions accordingly.”

President-elect Trump has promised to take a number of actions in his first 100 days in office, part of his “Contract with the American Worker.” Some of the highlights with respect to business immigration follow. It should be noted that actions promised by any president-elect may never come to fruition because of practical, economic, or political infeasibility. Also, once decided, changes in the law take time; new regulations require a lengthy process governed by the Administrative Procedures Act, and renegotiating treaties can take years.

Reverse executive actions directed by President Obama.

Vulnerable programs include those designed to attract investment and entrepreneurship in the United States, such as the International Entrepreneur Rule, which is currently pending regulatory enactment. Very likely to be impacted is the Deferred Action for Childhood Arrivals program (DACA), which provides temporary protection and work authorization for undocumented individuals brought to the United States as children.

Issue hiring freeze for federal employees.

It is important to note that immigration law is primarily federal, with the exception of some state and local ordinances. Both enforcement actions and benefits adjudications are handled by federal employees.

For every new federal regulation, eliminate two existing regulations.

There is no reference as to the substance of the regulations chosen for elimination in such a swap. Whether affected by executive action or congressional action, eventually all of the proposed actions would require new regulations. Yet, the president- elect’s policies reflect a clear abhorrence for federal regulation.

Mandate the use of E-Verify in all sectors, nationwide. “Pause” the issuance of permanent residence status (green cards) for individuals abroad. Add a minimum wage requirement of $100,000 for H-1B eligibility.

All of these actions would require new regulations.

Renegotiate or withdraw from the North American Free Trade Agreement (NAFTA).

NAFTA includes a provision for work authorization for certain professional positions for Mexican, American, and Canadian nationals in these respective countries. For those who cannot obtain an H-1B due to the quota limitations, the TN visa has been an important alternative.

Initiate a process of “extreme vetting” against foreign nationals entering the United States.

It is unclear what “extreme vetting” would entail, what this would mean to the efficient flow of both business and tourism travel to the United States, and who would get caught up in the net of suspicion.

Suspend immigration from “terror-prone regions where vetting cannot safely occur.”

What constitutes a “terror-prone” region is not defined. However, if we look at past practices in which men from predominantly Muslim countries were required to register under the National Security Entry-Exit Registration System (NSEERS) after September 11, 2001, and President-elect Trump’s recent suggestion to temporarily ban Muslims from the U.S., it is not unreasonable for an employer to anticipate that hires of nationals from any predominantly Muslim country will be increasingly difficult.

Fund the construction of a wall on our southern border and somehow require Mexico to reimburse the cost.

From a business perspective, this raises the critical question of whether the wall and/or whatever measures are taken to require Mexico to pay for it will result in a stagnation of the efficient flow of goods and services across the southern border region.

Ensure jobs are “open to Americans first.”

This seems to indicate a labor certification-type test of the labor market would be required for most or all visa classifications before a position could be made available to a foreign national. The expense, time, and administrative burden of requiring labor certification in all classifications would likely create a significant disincentive for U.S. employers considering hiring foreign nationals. Again, the question is what impact this will have in a company’s ability to compete in a global economy.

The immigration issues we must address encompass more than just business and legal immigration. The undocumented and how they are treated will play a vital role in the overall U.S. economy. Establishing law and policy is just the beginning. Applying the laws and policies consistently, fairly, with humanitarian compassion, and with an understanding of business reality is a much larger issue. It is critical for each of us as individuals and the business community as a whole to take a leadership role in that conversation.

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