“Trump Immigration”: What to Expect Before the Election
“Trump Immigration” has been a brand of immigration policy focused on promoting a constant feeling of confusion and unpredictability for U.S. companies and immigrants alike. This has only accelerated as we move towards the November, 2020 presidential election. So what can we expect between now and November? Most likely at least one more series of Executive Orders aimed at attempting to restrict lawful immigration, perhaps an attempt at some merit based measures, changes to H1B adjudications, and perhaps more.
“Buy American Hire American” Was Just the Start
Since early on in President Trump's time in the White House there has been talk of many coming changes to the U.S. immigration system. One of the first actions was the release of the Buy American Hire American Executive Order, which set the tone for the challenging adjudication climate which followed, in particular impacting H1B and L1 visa applications and others, a trend which still continues today.
Since then various legislative agendas have been put forth focusing on a number of anticipated immigration changes targeting among many others, H1B visa standards and legal definitions, F1 student’s ability to work on OPT and STEM OPT, getting rid of H4 work authorization for spouses of H1B visa holders, ending DACA, instituting a merit-based immigration system, and more.
Although all of these agenda items went untouched over the last several years from an actual rule-making standpoint, President Trump has impacted the immigration system. The Administration has used Executive Orders, internal changes to adjudications standards, and in one case even made an overnight change to the USCIS government website creating additional requirements for H1B visas in the consulting context, all without any warning or rule-making.
As of late President Trump has turned up the heat as the election approaches. So where are we now and what can we expect as we head towards the Presidential election in November?
Recent Trump Immigration Actions: DACA, Executive Orders, and F1 Students
Before turning to what we can expect in the remaining months of Trump's Presidency before the November elections let's take a quick look at some more recent immigration actions.
DACA Struck Down by the Highest Court in the Land
Starting with DACA, the Trump administration lost its battle in front of the Supreme Court as it attempted to remove immigration benefits from DACA recipients, those who were brought to the U.S. under the age of 16. The Trump administration essentially wanted to abandon the program forcing family separation and making those who grew up in the U.S. leave to start brand new lives in countries they did not know.
The U.S. Supreme Court on June 18, 2020, rejected the Trump administration’s push to rescind DACA protections for over 600,000 undocumented persons. The Court cited that the Order from the Department of Homeland Security was "arbitrary and capricious" and that the Trump administration had not properly justified its actions. There are specific procedures that must be followed for a change of this magnitude and the Trump Administration, known for not following proper rule-making, lost this battle. This was one of the Trump administration’s main focuses since taking control of the White House in 2016. DACA was created in 2012 under the Obama Administration.
Executive Orders under the Guise of COVID-19
On April 22, 2020 the Trump Administration published an Executive Order, citing COVID-19’s economic impact, in which immigrant visa (Green Card) processing through U.S. Consular posts abroad was halted.
Then, on June 22, 2020 President Trump advanced an Executive Order, extending the ban on immigration visa processing abroad and additionally targeting H, L and J visa holders. This move was aimed at primarily impacting H1B and L1 status holders from freely traveling in and out of the U.S. The administration, on June 29, 2020, then released an amendment to the June 22, 2020 Proclamation. This update was released to further clarify some ambiguity which existed in the initial proclamation. At the end of the day this trio of Executive Orders meant that immigration visa processing for H1B, L, and J visas would not occur in most situations from outside the U.S. until after December 31, 2020.
There is current litigation pending on all these Executive Orders.
F1 International Students and Online Courses
The Trump administration, on July 6, 2020, through guidance from ICE (U.S. Immigration and Customs Enforcement) provided that attending school through online-only courses would not be sufficient for an international student to maintain valid immigration status. This guidance was set to impact over 1 million F1 students, forcing them to make very difficult decisions whether to change schools, attend in person classes even with the major health risks due to COVID-19, or whether to leave the U.S.
Then, on July 14, 2020, the Trump administration rolled back their guidance on the day that oral arguments were to be held in a case filed by Harvard against the Department of Homeland Security, in President and Fellows of Harvard College et al. v. U.S. Department of Homeland Security et al., case number 1:20-cv-11283, in the U.S. District Court for the District of Massachusetts. This roll-back of the ICE guidance once again allowed F1 students to remain in the U.S. lawfully while taking online courses as a result of drastic changes taking place in the educational system in order to cope with COVID-19.
Upcoming Trump Immigration Actions: Merit-Based Immigration, H1B Changes, and More?
On July 10, 2020, President Trump indicated, in a confusing statement, that he planned to unveil various immigration measures over the next 4 weeks. Trump used the words ‘executive order’ and ‘immigration bill’ interchangeably. Actual changes to immigration laws require following set processes under the Administrative Procedures Act, allowing for public comment and notice periods among other set processes. Executive Orders on the other hand circumvent such required procedures but are supposed to be used in limited situations that qualify under the President’s powers.
In one of the most confusing statements President Trump provided:
"We're working out the legal complexities right now, but I'm going to be signing a very major immigration bill as an executive order, which the Supreme Court now, because of the DACA decision, has given me the power to do that," Trump said."
Both statements, signing an immigration bill as an executive order, as well as the power provided by the Supreme Court from DACA, are very unclear.
President Trump also mentioned, referring only in part to DACA that “[i]t's going to be a very big bill, a very good bill, and merit-based bill and it will include DACA..."
Whitehouse spokesman Judd Deere stated that:
"As the president announced today, he is working on an executive order to establish a merit-based immigration system to further protect U.S. workers. Furthermore, the president has long said he is willing to work with Congress on a negotiated legislative solution to DACA, one that could include citizenship, along with strong border security and permanent merit-based reforms. This does not include amnesty."
President Trump's Merit-Based Immigration History and What We Might Expect for Green Cards and H1B Visas
President Trump has in May, 2019, and more recently in June, 2020, discussed creating a:
"new merit-based legal immigration system that protects American wages and safety. net programs, prioritized immediate families, and creates a fair and transparent process for immigration to America."
In May, 2019 President Trump unveiled his merit-based immigration vision, or rather repurposed parts of a prior merit-based bill from 2017 called the RAISE Act.
This new plan from 2019 included changes to get rid of the majority of family based immigration categories and instead give those Green Cards to a new employment-based Green Card catch-all category, replacing the existing employment-based Green Card categories. This new catch-all coined the "Build America Visa" would be geared towards those who could prove their extraordinary ability, professionals, and those with exceptional academic achievements. In this selection system, applicants would be allotted points for:
Age
Valuable skills
Offer of employment
Advanced degrees
Ability to create jobs
Earning higher wages.
This statement did not result in any changes at the time. Recently, on June 22, 2020, President Trump again raised the merit-based immigration topic but with a twist, focusing the comments on H-1B applications and not Green Card filings. This recent statement, in part, provided:
MOVING TO A MERIT-BASED IMMIGRATION SYSTEM: The Trump Administration will reform our immigration system to prioritize the highest-skilled workers and protect American jobs.
At President Trump’s direction, the Trump Administration is taking action to reform our H-1B immigration program.
Under these reforms, the H-1B program will prioritize those workers who are offered the highest wage, ensuring that the highest-skilled applicants are admitted.
The Trump Administration will also close loopholes that have allowed employers in the United States to replace American workers with low-cost foreign labor.
These reforms will help protect the wages of American workers and ensure that foreign labor entering our country is high skilled and does not undercut the United States labor market.
Based on President Trump's past position on merit-based immigration we are left to wonder if we can expect an actual immigration bill to be proposed laying out a plan for a point-based Green Card system. It would seem unlikely for this to be the case with only few months left before the November, 2020 election. Instead President Trump might attempt to use the executive order path once again, likely citing COVID-19. This executive order could be used to alter the way that Green Cards applications are being adjudicated. These changes would very likely require actual rule-making so the validity of such executive orders would be challenged.
What is more likely to occur, however, especially based on the language of the most recent June 22, 2020 statement may be an attempt to utilize the "merit-based" argument to alter the H1B professional worker category. The H1B has been a favorite target of the Trump Administration and in various legislative agendas, and statements, the Administration has clearly had the H1B on its roadmap. Some of the H1B topics have included:
Changing the definition of ‘Specialty Occupation’ which would change the way an H1B position and an individual’s background would be assessed for qualification;
Changing the wage requirements associated with H1B applications, something which already exists but which the Trump administration has apparently wanted to target and possibly only allow the highest wage levels to qualify;
Revising the definition of employer and employee-employer relationships aimed at making it more difficult for consulting companies (another area where the Trump administration suffered a recent Federal Court defeat) and possibly entrepreneurs to qualify.
What Other Immigration Changes Can be Expected before the Election?
Beyond the merit-based statement made recently by President Trump, some other areas where we could see attempted changes prior to the November elections include:
Changes to STEM OPT limiting the ability of international students to work after completing their degree courses of study in the U.S.
Getting rid of H4 spouse's ability to work in the U.S. in the limited scenario where H1B holders have an approved I-140 (one of the stages of the Green Card process that one completes prior to applying for Green Card).
Reconsidering the PERM Labor Certification (test of US labor market) process for Green Card cases, possibly attempting to have companies re-test the labor market for those who already passed this stage of the process.
It is also worth noting that another major impending immigration obstacle relates to the possible furloughing of over 13,000 USCIS employees starting August 3, 2020. This would bring case processing to a near halt and would likely eliminate any sort of expedited "Premium Processing" that companies often rely on to speed up decisions on cases.
So What Can be Done to Prepare for Trump's Next Immigration Actions?
Keeping up to date with immigration news is key. Feel free to sign up for our newsletter below and keep tuned into the news as well. Additionally companies and individuals alike can:
Make sure to file any extension applications as far in advance as permitted by law. This can normally be done 6 months prior to the expiration date on the I-94 period of authorized stay. Note that this is different from the expiration date on a Visa.
Expect case processing to slow down if there are USCIS furloughs. Again for this reason be sure to file cases timely and understand the 240 day automatic extension of work authorization for most non-immigrant visa categories.
Make sure that as an individual you understand how to maintain valid status in the U.S. This requires knowing what your F1, H1B, L1, O1, or other immigration status types allows you to do and what it does not allow you to do.
Ensure that as a company and an individual you know about various visa options that might be applicable in case there comes the time that other visa options might become necessary. This is currently an issue for those stuck outside the U.S. who would otherwise obtain a new H1B or L1 visa to enter the U.S. but who cannot due to the June 24, 2020 Trump Executive Order.