November 15, 2016

How Trump's Immigration Promises May Translate Into Policy

Immigration was a major issue in Donald Trump’s presidential campaign. Now that he has been elected, employers and foreign nationals are anxiously watching for indications of what President-elect Trump will do after he takes office on January 20, 2017. Some of his campaign pledges could be implemented relatively quickly through direct presidential action. Others would require congressional legislation to change statutes and provide funding. With Republicans controlling both Congress and the White House, President Trump may achieve much of what he wants.

Build a Wall

Candidate Trump’s signature immigration promise was to build a wall along the southern border of the United States. Cost estimates for such a massive project range from $12 billion to $25 billion. Trump promised Mexico would pay for the wall, but Mexico’s president has stated that the country will not pay. To build a wall, Congress will have to allocate funding. Early indications are that the Republican-controlled Congress may be willing to fund a wall, though some portions of the project may be downgraded to secure fencing.

Revoke Obama Executive Actions

Through executive action, President Obama created the DACA program which has provided temporary deportation relief and work authorization to about 750,000 young people who are in the U.S. without authorization. Candidate Trump promised to end the DACA program on his first day in office. He will likely follow through on this pledge. An open question is whether the employment authorization already granted to DACA beneficiaries would also be immediately revoked.

Deport 11 Million Undocumented Persons

Candidate Trump promised to immediately deport the 11 million persons who are in the U.S. without authorization. He is now saying he would target about two to three million, focusing first on criminals. President Trump will have the authority to increase the number and rate of deportations, but he will be limited by the constraints of the nation’s deportation system. Every person is eligible for due process, which generally means they are eligible for a hearing before an immigration judge to determine whether they are subject to deportation. The current deportation system can process only about 400,000 cases per year, and the backlog of cases is already significant. Ramping up the rate of deportations would require congressional authorization of billions of dollars in additional funding for new enforcement officers, detention centers and immigration judges.

Renegotiate NAFTA and Potentially Eliminate the TN Visa

Candidate Trump strongly criticized the North American Free Trade Agreement (NAFTA) between the U.S., Canada and Mexico. He said the agreement is unfair to the U.S. and promised to renegotiate NAFTA early in his administration. If he is dissatisfied with the results of the renegotiation, Trump promised to withdraw the U.S. from NAFTA. He has the authority to do this with six months’ notice to Canada and Mexico. The TN work visa for professionals from Canada and Mexico is based on NAFTA, so the TN visa would presumably disappear.

Reform the H-1B Visa Program

It is unclear what changes President Trump would propose to the H-1B work visa program for professionals. His campaign literature called for requiring H-1B employers to pay the highest-level prevailing wage and to require employers to recruit for U.S. workers prior to sponsoring an H-1B worker. Any significant changes to the H-1B visa program would require congressional action.

Implement Mandatory E-Verify and Increase Employer Enforcement

E-Verify is an electronic work authorization verification system that is currently optional for most employers. There have been several proposals in recent years to make E-Verify mandatory to replace the paper-based I-9 form process. Trump has called for such an expansion of E-Verify, and there is a good chance Congress will agree. Trump has also called for stepped-up enforcement activity against employers using undocumented workers. This could take the form of increased worksite raids and employer audits.

Pause Issuance of Immigrant Visas to Foreign Workers

Candidate Trump proposed a pause or temporary suspension in the issuance of immigrant visas and green cards to foreign nationals outside the U.S. The purpose of the pause would be to require employers to first try to hire unemployed U.S. workers.

Bar Muslims From Entering the U.S.

Candidate Trump initially called for a ban on Muslims entering the U.S. A religion-based limitation would likely be unconstitutional. But President Trump would have the authority under the current immigration statute to block the issuance of visas to citizens of certain countries if he determines that entry of such persons could be detrimental to the interests of the U.S. Short of a full ban, President Trump could subject citizens of certain countries to additional vetting and security checks.

Block Refugee Resettlement

Candidate Trump promised to block further resettlement of refugees from Syria. He would clearly have the authority to do this as president. There is no legal obligation for the U.S. to resettle any refugees. The president sets the target number for refugee resettlements every year. He could reduce the number and refuse refugees from certain countries.

Conclusion

In immigration and other areas, all eyes are on Washington (and Manhattan), seeking clues about the extent to which the promises of the Trump campaign will become the priorities and policies of the Trump administration. Who Trump appoints to the positions of Secretary of Homeland Security and other offices affecting immigration could be early indicators. Focus will also be on Congress, which may start legislating again now that Congress and the presidency are under common Republican control.

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