The Election of Donald Trump and its impact on Immigration

The election of Donald Trump has sent shock waves throughout the United States and across the world.  As a candidate, President-elect Trump ran on a platform that included building a wall across the border between the United States and Mexico. Then he promised to enacted rules that affect the entry of both Muslims and refugees from the Middle East.  He also vowed to undo all of the executive orders signed by President Obama.  Many people are concerned about the effect his election will have on immigration and immigration reform.  The short answer is that no one really knows the initial priorities of the Trump administration.  As for the Trump administration's approach to immigration, there are a few things to keep in mind.

First, mass deportations are not very likely. People placed in removal proceedings have due process rights. The extents to which they slow or prevent removal (deportation) vary depending upon the situation, but there are protections for people whom the government decides it wants to remove.  It is important to remember that there has not been an "amnesty" under the Obama administration.  Although, the number of people in removal proceedings may have recently decreased, the number of people removed during his administration is larger than that of his Republican predecessor, George Bush.

Second, House Republicans have expressed interest in immigration reform, although it is not clear the shape it would take.  The Obama Administration called for comprehensive immigration reform. House Speaker and former vice-presidential candidate Paul Ryan has called for piecemeal changes to the current system.  We will probably have a better sense of the Trump's ideas and policies as his inauguration grows nearer.

Finally, much depends upon on how Trump emerges as President.  His rhetoric during the campaign was inflammatory, yet he struck a conciliatory note during his victory speech. During the campaign he promised to undo all of Obama's executive orders.  One such program is Deferred Action for Childhood Arrivals (DACA).  This program allowed those who were brought here as children to work in the United States and not fear deportation.  Revoking this program could immediately take away the ability of the 380,000 people to lawfully work in the United States. Whether that will be the approach of the Trump administration remains to be seen. Stay tuned.

USCIS Proposes Rule to Welcome International Entrepreneurs

The United States Immigration and Citizen Services released the below press release on Friday.  It lays out the Service's plan for permitting investors and international entrepreneurs to be considered for parole (temporary admission) to the United States to start or develop their U.S. based business.  It is not the "startup visa” that many entrepreneurs were hoping for to be certain, but it does allow individuals who meet certain criteria to be admitted to the United States to further the develop a business begun in the United States.  The rule would allow entry to those:

1) Who have a significant ownership interest in the startup (at least 15 percent) and have an active and central role to its operations;

2) Whose startup was formed in the United States within the past three years; and

3) Whose startup has substantial and demonstrated potential for rapid business growth and job creation, as evidenced by:

a) Receiving significant investment of capital (at least $345,000) from certain qualified U.S. investors with established records of successful investments;
b) Significant awards or grants (at least $100,000) from certain federal, state or local government entities; or
c) Partially satisfying one or both of the above criteria in addition to other reliable and compelling evidence of the startup entity’s substantial potential for rapid growth and job creation.

It will permit an entrepreneur to remain up to two years to develop a business and then permit an extension of parole for three more years provided the business has exhibited substantial public benefit.

As the press release linked below indicates, there will be a 45-day period for the public to comment.  After that period, the rule will go into effect when published in the Federal Register.

https://www.uscis.gov/news/news-releases/uscis-proposes-rule-to-welcome-international-entrepreneurs

Proponents will view this development as an overdue response to pent up demand for a means for entrepreneurs to contribute to the U.S. economy.  It is an ambitious proposal considering the current political climate.  Presidential candidate Donald Trump has vowed to end the H-1B program, which is a program through which US employers bring a limited number of foreign employees to work in the United States.  If the reaction by States to President Obama's Deferred Action programs are an indication of the response USCIS might expect from opponents, the success of the new rule's implementation are not guaranteed. 

Trump and The H-2 Visa

News sources are reporting that Donald Trump has hired seventy-eight  temporary foreign employees to work at his Mar-a-Lago Club in Pam Beach, Florida. Critics  are claiming that he employs a double standard as one of his main campaign themes is that he plans to bring jobs back to the United States. 

It is interesting to consider this issue as he is petitioning for these workers under the H-2B visa program, “Temporary Non-Agricultural Worker Visa.”  This visa exists so that employers who have difficulty finding workers for seasonal employment.  United States Customs and Immigration Service’s (“USCIS”) website lays out the requirements for what types of jobs qualify under the program: 

To qualify for H-2B non-immigrant classification, the petitioner must establish that:

1) There are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work.
2) Employing H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.
3) Its need for the prospective worker’s services or labor is temporary, regardless of whether the underlying job can be described as temporary.  The employer’s need is considered temporary if it is a(n):

• One-time occurrence or Seasonal need or Peakload need or Intermittent need. 

In addition to demonstrating these requirements an employer has to file a Labor Certification Application (LCA) and advertise the position locally so that American workers have the opportunity to apply for the position.  The employer also has to keep records of its interviews of American workers and has to maintain records of interviews and explanations as to why US workers were not hired if requested. 

The requirements of the visa are designed so that an employer pays the employee the prevailing wage for the position, which in theory protects American workers.    Mr. Trump has claimed that he cannot find workers to work in the positions he needs filled, while others have claimed that he underpays the employees he hires despite the rules of the program.  

There are consequences for employers who violate the terms of this visa program, but this blogger has not found any reports that the Department of Labor or USCIS has taken any action against the Club for violating the terms of the program.  In the meantime, the debate about the overhaul of the immigration laws of the United States continues.  

Employers interested in the H-2 visa program are encouraged to consult with an experienced attorney with any questions.  This blog is for informational purposes only and is not legal advice.  

Australians and The E-3 Visa

The E-3 visa is available to Australians who have an offer of employment from a company in the United States that wishes to employ them.  The visa is similar in many ways to the H-1B visa in that the employment has to be for a specialty occupation. According to USCIS’s website, in order to be a specialty occupation, the job must meet one of the following criteria:

1)         A bachelor’s degree or higher or its equivalent is the minimum entry level requirement for the position;

2)         The degree required is common to the industry or the job is so complex or unique that it can be performed only by an individual with a degree;

3)         The employer normally requires a degree or its equivalent for the position;

4)         The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s degree or higher degree.

In order for the employee to accept the position, the beneficiary must meet one of the following requirements:

1)      Hold a U.S. Bachelor’s Degree or higher that is required for the position;

2)      Hold a foreign degree that is equivalent to a U.S. Bachelor’s Degree  required for the position;

3)      Hold an unrestricted state license, or certification that authorizes you to practice the specialty occupation and be engaged in the state of intended employment;

4)      Have education or training or progressively responsible experience in the specialty occupation that is the equivalent to the completion of such a degree.

The sponsoring company must also file an approved form ETA-9035, Labor Condition Certification (LCA, ) and Form I-129 "Petition for a non-Immigrant Worker" with USCIS. There are exceptions to this method of filing however. Under certain circumstances, a prospective employee currently working or living in the United State under a status other than E-3 may be able to accwpt employmnent under the E-3 visa. 

A petitioner employer may file an LCA for the prospective employee and upon approval request that the employee beneficiary apply for an E-3 visa on the Department of State's website and then follow up with the scheduling of an appointment for an interview at a consular post outside of the United States.  Depending upon the circumstances, this method may allow an employer to quickly hire a prospective employee, thus saving the time and expense often required to recruit and hire an employee who is qualified under this visa.  

Each circumstance is different so results will differ.   Contact an experienced attorney with any questions as the above is informational only and should not be construed a legal advice.