I’ve waited a full week after the election to write and post this, in the hope we would have a little more information and be able to offer better guidance…and maybe some reassurance.
The fact is, we still don’t know very much – and of what we do know, some is a little reassuring and some not so much. Trump doesn’t take office until January 20, 2017 – and some of what he plans could take some time past that to implement. Given his tendency to change positions on many issues, we don’t even really know how much we can infer from what he and his advisors have said so far.
First I want to discuss the “big picture” stuff that frames most of what gets covered in the media, then about some specific case types of interest to our clients.
I. Big Picture Issues
Trump has walked back some of his promises to deport all undocumented immigrants (of which there are approximately 12 million), stating in a 60 Minutes interview last Sunday November 13 that he wants to focus immediately just on individuals with criminal backgrounds. On its face, the focus on criminality isn’t much different than the stated policy under Obama – but how this is implemented remains to be seen.
This policy of going after “criminal” undocumented targets a supposed two to three million out of the 12 million undocumented; Obama deported about 2.5 million in his seven years in office; the “immediately” part is therefore very questionable – though inability to act wouldn’t necessarily be a bad thing. Of course, this would supposedly also give some breathing room to the undocumented without any criminal records.
He has promised to repeal by executive action those programs that were implemented by Executive Action – most notably DACA (Deferred Action for Childhood Arrivals), a program meant to protect people brought to the US without inspection as children and so completely without personal fault for their status in the US.
He’s mentioned that the promised “border Wall” with Mexico may include some sections of fencing rather than solid wall, but this seems a distinction without much real meaning.
On another issue that impacts immigration, marriage equality, Trump noted in the 60 Minutes interview that he considers the issue “settled” by the Supreme Court decision striking down the Defense of Marriage Act and protecting same-sex marriage. If he sticks to this, countless current and future immigration benefits such as green cards and derivative & dependent visas for same-sex couples would be protected. However, this is another issue where his stance depends on the day – and Vice President-elect Mike Pence has a distinctly different view.
Of course – and this is of interest not just to immigrants but to all of us who are somehow “different” (perhaps due to religion, race, ethnicity, etc.) – Trump has [finally] voiced discouragement for the countless senseless and bigoted acts of violence by his supporters on the “alt-right” – who now seem to feel empowered to be overtly racist and xenophobic in public, often to the point of using physical force against minorities and at-risk populations. We’ll be interested to see if they take this to heart, but his own appointment of former Breitbart News Executive Chairman Stephen Bannon to a senior advisory position doesn’t exactly provide encouragement that Trump will put his money where his mouth is in standing up to racism.
II. Specific types of cases
Over the past week, we’ve received literally hundreds of e-mails from clients asking what this means for their own situation. Again, we just don’t know yet how any individual situation might change under a Trump administration.
We can conjecture, however, about how certain types of case and specific immigration benefits (beyond DACA, discussed above) might change:
Citizenship/Naturalization – I don’t think it’s likely that the new administration will target this pathway specifically. What might be possible down the road, however, are more stringent security checks further delaying the process.
Marriage-Based Permanent Residence (Green Cards) – Same as above in the short term; I don’t anticipate an immediate change in policy but additional security check could further delay processing. Further, as other options disappear, there may be a perception – true or not – that more people will resort to fraudulent marriage-based cases. This could lead to more aggressive interviews, [more] wrongful denial of valid cases, or at the least further delays in processing.
H-1B Nonimmigrant work visas – These visas in particular might be the earliest targets of changes under a Trump administration. The H-1B has always been politically controversial, but especially so in the last year or so with a great deal of press concerning their use in “offshoring” jobs (a small fraction of their actual use, though there are several large companies involved in this activity. Much of what’s been suggested involves increasing the minimum salary to a specific, higher figure…which targets not so much outsourcing/offshoring companies (which might only keep an employee on board in the US for a few months to transfer skills, and so can build the cost into the services agreement) but small businesses and startups hiring entry-level people out of Bachelor’s programs. I suspect we’ll see come change here – none of it good.
Other nonimmigrant work visas such as L-1A & L-1B, O-1, E-1 and E-2, E-3, and TN – While I don’t expect any of these visa types to be direct, near-term targets for change, some are still at risk:
L-1A / L-1B – These visas for intracompany transferees coming from an overseas company to a related (parent/subsidiary/affiliate/branch) US company aren’t likely to see much additional change in the near term. The L-1B category for workers with specialized knowledge of the company’s techniques, technologies, methods, etc., has already been targeted due to a perception that these are used to get around the scarcity of H-1b visas or effectuate offshoring and outsourcing and so have proven difficult to obtain in more recent years.
O-1 – These visas for individuals of extraordinary ability in business, athletics, science (O-1A) or television and motion picture arts (O-1B) are also likely to remain untouched in the near term.
E-1 / E-2 – The E-1 Treaty Trader and E-2 Treaty Investor visas, for individuals working either in a business with 50% or more trade with the home country or investors and keep employees in new or purchased US business respectively, are created by treaties of Trade and Navigation between the US and various countries. While not politically controversial in themselves, Trump’s stated desire to renegotiate US treaties with allies could conceivably have an impact on these visas…at least for certain countries. Not likely, but possible.
E-3 – A visa much like the H-1B, but created by treaty for nationals of Australia only. Again, not controversial, but there’s a slim chance that changes in our relationship with allies such as Australia could eliminate visa created by treaty.
TN – The Trade NAFTA visas for nationals of Canada and Mexico may also fall victim to Trump’s stated intent to renegotiate the NAFTA trade deal which created these visas. This is perhaps slightly more likely to be problematic than the E class of visas.
Of course, I’m focusing here mainly on the immigration impact of Trump’s election – countless other areas are impacted here including multiple civil rights issues (law enforcement treatment of minority communities, abortion, women’s rights generally, treatment of Muslim-Americans outside the immigration context…the list goes on).