Insight

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

Business Immigration Issues
FA

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.

Related Articles

Will Recent Boeing Settlements Create Tailwinds In Corporate Law?


by Justin Smulison

Prominent litigation against Boeing is setting a precedent of accountability, professionalism and commitment among company boards as well as ushering ESG further into the courtroom to help monitor and prevent safety issues.

Recent Boeing Settlements and Corporate Law

Colorado's Best Lawyers 2022


by Best Lawyers

Our 2022 Colorado's Best Lawyers publication features top-ranked legal talent in Boulder, Denver and Western Colorado.

Colorado's Best Lawyers 2022

Newly Launched COVID-19 Litigation Project Offers Open Access To Pandemic-Related Court Judgments From Over 70 Countries


by Sara Collin

A worldwide database of COVID-19 cases is uniting more than 70 countries as judges, lawmakers and lawyers continue to navigate pandemic related litigation and the ways in which it’s evolving amid year three.

COVID-19 Worldwide Litigation Project

Road to Somewhere


by Mark LeHocky

How can attorneys take steps to improve settlement efforts and avoid unpleasant surprises as they map out a dispute resolution? One litigator-turned-general counsel-turned mediator (with some help from a distinguished rock star) points the way forward.

Improved Dispute Resolution Settlement

Look for the Zoom Label


by Anne R. Yuengert and Matthew C. Lonergan

Will the virtual platforms that got such a boost during the pandemic replace how you interact with your employees, unions, and lawyers?

Virtual Platforms Replacing Work Interactions

Discovery in the Time of COVID-19


by H. Barber Boone

The pandemic has affected the vital process of legal discovery in ways both good and bad. Which changes are likely to become widely accepted in the years ahead?

The Impact of COVID-19 on E-Discovery

Busting a Trust


by Joseph Marrs

The rules governing trusts and asset distribution are often much more flexible than many might assume. Here’s a primer.

Rules Governing Trusts and Asset Distribution

The Next Chapter


by Patrick M. Shelby

Among its uncountable other disruptions, the pandemic upended U.S. bankruptcy procedures. Congressional relief, legislative changes, amended legal provisions: What lies ahead for those looking to file?

COVID-19's Impacts on Bankruptcy Procedures

Phoning It In


by Alyson M. St. Pierre, Ashley C. Pack and Crystal S. Wildeman

It’s not easy for employers to weigh requests from employees to work from afar, even in the wake of the pandemic. Considerations include COVID-19, vaccinations, the Americans with Disabilities Act and the nature of the job itself.

Employer Considerations for Teleworking

Compelled to Compete


by Ashish Mahendru

Courts and legislatures—and now the White House—are taking an increasingly dim view of noncompete employment agreements, a development the pandemic has quickened. What can employers do to protect their confidential information?

Protection for Employers Beyond Noncompetes

Meeting Halfway


by Julia B. Meister

To resolve family and business disputes including wills, trusts, estates and more, mediation is often a more effective, gentler and cheaper option than litigation.

Mediation to Resolve Wills, Trusts, Estates

Look Out Below


by Mary Jo Larson

Employee 401(k) and other pension plans that include company stock can be a financial minefield. What’s a responsible fiduciary to do to lessen the risk of a plummeting share price—and the risk of a subsequent “stock-drop” lawsuit from aggrieved workers?

Navigating Employee 401(k) and Pension Plans

Family Law – Sometimes All in the Family


by Justin Smulison

Led by a father-and-son team of Family Law lawyers and trial advocates, with the support and assistance of family members, Blevans & Blevans, LLP continues its tradition of excellence serving the Northern California Bay Area in 2020 and beyond.

Blevans & Blevans

Achieving Justice For Essential Workers


by Justin Smulison

Patrick Regan of Regan Zambri Long describes how the recent resolution of a corporate negligence case brought closure to survivors of a fatal 2016 apartment building explosion.

Patrick Regan Best Lawyers 2021

Is It Live . . . Or Is It Virtual?


by Adrian L. Bastianelli III, Kevin J. O'Connor, Paulo Flores and Robert S. Peckar

Mediation via Zoom is just one of the legal-industry oddities the pandemic has wrought. Here’s a cheat sheet for how to make it work for you—and some thoughts on whether it’s here to stay.

Virtual Mediation

Great Rebuild


by Best Lawyers

Néstor Méndez discusses labor peace, junk-bond repercussions, and the laudable resilience of those who call this storm-battered island home.

An Interview With Pietrantoni Méndez & Alvare

Trending Articles

The Real Camille: An Interview with Johnny Depp’s Lawyer Camille Vasquez


by Rebecca Blackwell

Camille Vasquez, a young lawyer at Brown Rudnick, sat down with Best Lawyers CEO Phillip Greer to talk about her distinguished career, recently being named partner and what comes next for her.

Camille Vasquez in office

Announcing The Best Lawyers in The United Kingdom™ 2023


by Best Lawyers

The results include an elite field of top lawyers and firms from the United Kingdom.

The Best Lawyers in The United Kingdom 2023

Johnny Depp and Amber Heard: The Best Lawyers Honorees Behind the Litigation


by Gregory Sirico

Best Lawyers takes a look at the recognized legal talent representing Johnny Depp and Amber Heard in their ongoing defamation trial.

Lawyers for Johnny Depp and Amber Heard

Announcing The Best Lawyers in France™ 2023


by Best Lawyers

The results include an elite field of top lawyers and firms from France.

Blue, white and red strips

Announcing The Best Lawyers in Germany™ 2023


by Best Lawyers

The results include an elite field of top lawyers and firms from Germany.

Black, red and yellow stripes

Education by Trial: Cultivating Legal Expertise in the Courtroom


by Margo Pierce

The intricacies of complex lawsuits require extensive knowledge of the legal precedent. But they also demand a high level of skill in every discipline needed to succeed at trial, such as analyzing technical reports and deposing expert witnesses.

Cultivating Legal Expertise in the Courtroom

Announcing The Best Lawyers in Belgium™ 2023


by Best Lawyers

The results include an elite field of top lawyers and firms from Belgium.

Black, yellow and red stripes

Announcing the 2022 Best Lawyers® in the United States


by Best Lawyers

The results include an elite field of top lawyers listed in the 28th Edition of The Best Lawyers in America® and in the 2nd Edition of Best Lawyers: Ones to Watch in America for 2022.

2022 Best Lawyers Listings for United States

Announcing the 2022 Best Lawyers™ in France


by Best Lawyers

The results include an elite field of top lawyers and firms, including our inaugural Best Lawyers: Ones to Watch recipients.

Announcing the 2022 Best Lawyers™ in France

Choosing a Title Company: What a Seller Should Expect


by Roy D. Oppenheim

When it comes to choosing a title company, how much power exactly does a seller have?

Choosing the Title Company As Seller

Announcing the 2022 Best Lawyers™ in Germany


by Best Lawyers

The results include an elite field of top lawyers and firms, including our inaugural Best Lawyers: Ones to Watch recipients.

Announcing the 2022 Best Lawyers™ in Germany

We Are Women, We Are Fearless


by Deborah S. Chang and Justin Smulison

Athea Trial Lawyers is a female owned and operated law firm specializing in civil litigation, catastrophic energy, wrongful death and product liability.

Athea Trial Law Female Leadership and Success

U.K. Introduces Revisions to Right-to-Work Scheme and Immigration Rules


by Gregory Sirico

Right-to-Work Scheme and Immigration Rules in

Famous Songs Unprotected by Copyright Could Mean Royalties for Some


by Michael B. Fein

A guide to navigating copyright claims on famous songs.

Can I Sing "Happy Birthday" in Public?

Destiny Fulfilled


by Sara Collin

Was Angela Reddock-Wright destined to become a lawyer? It sure seems that way. Yet her path was circuitous. This accomplished employment attorney, turned mediator, arbitrator and ADR specialist nonpareil discusses her career, the role of attorneys in society, the new world of post-pandemic work and why new Supreme Court Justice Ketanji Brown Jackson represents the future.

Interview with Lawyer Angela Reddock-Wright

What the Courts Say About Recording in the Classroom


by Christina Henagen Peer and Peter Zawadski

Students and parents are increasingly asking to use audio devices to record what's being said in the classroom. But is it legal? A recent ruling offer gives the answer to a question confusing parents and administrators alike.

Is It Legal for Students to Record Teachers?