Business Impact of the Trump Administration’s Immigration Policy

By John Hill and Rebecca Sigmund
Shareholders in the Immigration Practice Group at Ogletree Deakins Law Firm based in South Carolina

 

In a flurry of activity since taking office, President Donald Trump has moved forward on certain of his immigration related campaign promises.  More immigration related policy changes are expected to follow.  Controversial and already facing court challenges, certain presidential actions may impact businesses throughout South Carolina.

Executive Orders.  The President has already issued three Executive Orders that impact U.S. immigration policy.  One addresses border security and enforcement. Another is focused on interior enforcement.  The third is entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.”  The most controversial is perhaps the last one.

On January 27, 2017, President Donald Trump signed an executive order (EO) suspending admission to the United States of foreign nationals from the following countries for a period of at least 90 days: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.  Additional countries may be added.  Also note that individuals remaining in the United States will not be impacted.

Affected travelers included those holding valid visas (and therefore had been through a vetting process) and U.S. permanent residents (i.e., those with green cards).  The Government later reversed its stance and clarified that lawful permanent residents are not within the scope of the travel ban and should be admitted to the U.S. even if presenting a passport from a designated country.  Nonetheless, they will likely be subject to increased scrutiny and delays.

On February 3, 2017, a federal judge in the state of Washington issued a Temporary Restraining Order (TRO) that stops the executive order nationwide as it applies to the 90-day travel ban and certain refugees.  On February 9, 2017, the Ninth Circuit declined the U.S. Justice Department’s request for an immediate stay the ruling.  The matter may reach the U.S. Supreme Court.

The result has been confusion and uncertainty for businesses statewide that employ any foreign workers.  All have been scrambling as affected travelers were prevented from boarding flights, detained for possible deportation from airports, or learned their visas had been revoked.

The situation continues to change day to day and the impact could have far-reaching effect on all visa issuances and international travel.  Despite the TRO, companies employing foreign nationals should evaluate the impact (direct or indirect) on employees and their international travel and visa needs and plan accordingly.

Other items of note in the recent immigration related EOs that could impact South Carolina businesses include:

Suspension of Visa Interview Waiver Program.  The EO suspends the program that waives the Consulate interview requirement for some visa applicants seeking to renew their visas, having already gone through the vetting process.  (This is not to be confused with the popular Visa Waiver Program.)  This change affects all nationalities – not just the seven listed above.  The result will be increased demand for visa interview appointments at Consulates worldwide and longer backlogs for visa issuance.  Planning ahead will become more essential.

Additional Screening.  The EOs direct agencies to increase the screening standards for approval of immigrant and nonimmigrant visas.  When implemented, more delays should be anticipated.

Increased Enforcement.  The EOs seek to increase enforcement resources, including 10,000 additional agents to enforce immigration violations within the nation’s interior, 5,000 additional agents to police the border, and partnering with state and local enforcement officers to act as immigration officers.  At a minimum, South Carolina businesses should review their I-9 forms and policies/procedures, as well as the visa retention files of employees with work visas (when required) to ensure compliance.

“Leaked” Executive Orders.  In addition to the signed EOs, others have been “leaked” but not signed as of February 3, 2017.

As currently written, the “leaked” orders seek to review nearly all work visa categories including H-1B, L-1, practical training programs, H-2A, E-2, and J-1 Summer Work Travel Program, as well as to clarify the activity permitted for B-1 Business Visitors.  The “leaked” orders also propose to expand the site-visit program to cover all employment-based visa programs.

Anticipated Policy Changes.  Other business immigration changes that could be anticipated include:

• Renegotiation of NAFTA which could impact the TN and E-2 visa categories for citizens of Canada and Mexico.
• Review of programs that provide temporary work authorization to certain groups including the DREAM act children (DACA).
• Review of work extension benefits granted to certain foreign students who graduated from U.S. schools in STEM fields.
• Requirement for all businesses nationwide to use E-Verify.
• Substantial revision to the H-1B program.

If such changes occur, employers could lose key workers and access to top college graduates from STEM programs.

The business-related immigration policy of the Trump Administration continues to unfold with policies that will affect all employers – directly or indirectly.  Employers should stay tuned for updates on these fast-occurring changes and strap on a seat belt.  It is sure to be rollercoaster of a ride.

 

 

Ogletree Deakins has one of the largest business immigration practice groups in the Carolinas with eight immigration attorneys in South Carolina alone.  Contact John Hill at [email protected] or Rebecca Sigmund at [email protected] .

 

 

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