Trump and Employment-Based Immigration: What’s Next?

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By Laura D. Francis

Nov. 21 — President-elect Donald Trump’s campaign rhetoric has a lot of immigrant workers and employers on edge, but what actually happens remains to be seen.

“It’s unprecedented the amount of worry and fear in the immigrant population in the United States right now,” Susan Cohen of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo said Nov. 15. “People who are perfectly legal” in terms of their immigration status are “just as worried” as undocumented immigrants, the firm’s immigration practice chair told Bloomberg BNA.

“Right now we’re telling people to sit tight,” Houman Afshar of Gibney, Anthony, & Flaherty in New York told Bloomberg BNA Nov. 15. “Already the tune is starting to change a little bit” from what Trump said before the election, he said.

Trump “would be a president who’s actually been on the other side as an employer” who hired immigrant workers, Charles Foster, chairman of Foster Global in Houston, told Bloomberg BNA Nov. 18. So there is “slight room for being more optimistic,” according to Foster, a senior policy adviser to former President George W. Bush who has also advised President Barack Obama and former Secretary of State Hillary Clinton on immigration policy.

Ramped-Up Enforcement

Increased immigration enforcement is highly likely in any case, the attorneys said.

“Employers would be well-served to get their I-9 house in order,” Cohen said. All employers should conduct an in-house audit of their I-9 employment eligibility verification forms to make sure a form exists for every employee, there are no mistakes and all employees have shown they have work authorization, she said.

But Foster saw a return to large-scale work-site raids that were characteristic of the Bush administration’s immigration enforcement policy, rather than paper-based audits.

Relying on tips, a Trump administration Immigration and Customs Enforcement is likely to conduct “high-profile” raids that get a lot of media attention to show Trump’s base that he’s fulfilling his promise of deporting undocumented immigrants, Foster said. “That’s the quickest, easiest, low-hanging fruit” for getting that publicity, he said.

E-Verify: Worth the Risk?

Mandatory E-Verify, another Trump immigration proposal, isn’t really a surprise because the concept has been kicking around for some time, Cohen said. The electronic system checks employees’ information against government databases to make sure they’re authorized to work in the U.S.

Many employers are using E-Verify anyway to take advantage of optional practical training for foreign workers with science, technology, engineering and mathematics degrees, Afshar said.

OPT allows foreign students on F-1 visas to work for up to one year post-graduation in their field of study. Under regulations that came out in March, students who earn a STEM degree can extend that training period for an additional two years—if, among other things, their employers use E-Verify.

Mandatory E-Verify shouldn’t be a problem if employers only have to use it on workers hired after enrollment, Cohen said. But if employers must use the system on existing employees, the result could be “cataclysmic,” especially for industries such as construction, food services and landscaping that employ large numbers of undocumented workers, she said.

Making the system mandatory isn’t a done deal, Foster said. Because of the filibuster, passing the necessary legislation will require 60 votes in the Senate—and it’s not certain that all 52 Republicans in the chamber would go along with it, he said.

DACA’s Future Uncertain

And that’s where the deferred action for childhood arrivals may come into play. The program provides deportation relief and work permits to young, undocumented immigrants who came to the country as children.

One of Trump’s campaign promises has been to eliminate the program immediately after taking office. “The ripple effect” of such a move “would be very significant,” Cohen said.

The left-leaning Center for American Progress estimated that terminating DACA would result in $433.4 billion in lost gross domestic product over the next 10 years because about 87 percent of DACA recipients are working.

But it’s possible that the program might get replaced with the DREAM Act, Foster said. The legislation, which would provide legal status to roughly the same immigrants covered by DACA, has been introduced in multiple sessions of Congress but never passed.

Foster suggested the DREAM Act could be attached to mandatory E-Verify legislation to bring the Democrats on board. And it’s already gotten the support of Republican lawmakers such as House Speaker Paul Ryan (Wis.) and Rep. Raul Labrador (Idaho), he said.

“I think it would be a disaster” to eliminate DACA, both from an economic and humanitarian standpoint, Foster said. Trump “needs a graceful way to avoid” the resulting bad press, he said.

Testing Labor Market for Skilled Workers

Requiring a labor market test for H-1B visas is another concern. The temporary visas for high-skilled workers are a favorite in the tech industry.

The test that’s required before employers can sponsor workers for green cards is a “fair attempt” to make sure that U.S. workers aren’t displaced, but it “takes a long time” and a “huge amount” of resources, Afshar said.

Going through that process for a long-term employee is one thing; it’s another to require it for temporary visas, he said.

The program is supposed to be flexible so that employers can react quickly to the job market and changing economic conditions, Foster said. But a labor market test could make the application process take upward of two years, he said.

The current limit on the number of H-1B visas available per year—65,000, plus an additional 20,000 for workers with advanced degrees—is “an overdrawn joke, subjecting U.S. employers in need to a cruel game that also toys with the professional attributes of a very talented group of employees,” Afshar said. A labor market test would make “an unworkable situation even worse,” he said.

But Cohen and Foster weren’t sure about the proposal’s fate in Congress. “There will be heated debates and push back” from various groups that rely on the visas, including Silicon Valley, Cohen said.

A more likely scenario would be legislation that takes aim specifically at employers—particularly outsourcing firms—that use H-1Bs more heavily, Foster said.

Immigration and NAFTA

Trump’s call for an elimination and renegotiation of the North American Free Trade Agreement also has immigration implications, Afshar said. In addition to its trade provisions, NAFTA created the TN visa for professionals from Canada and Mexico.

The ultimate fate of the trade agreement is uncertain, but “one thing I feel relatively certain about is that it’s going to take some time” for any changes to be made, Afshar said. If NAFTA were completely eliminated, the U.S. would feel a “very significant impact” from the loss of TN visas, he said.

Just in case, those on TN visas may want to “take out some insurance and look at other visa options,” he said. That may prove difficult, as TN visas often are viewed as alternatives to the more popular H-1B visa, as long as the applicant is from Canada or Mexico.

TN visa holders work in “critical components of U.S. business,” and have “very few” alternative visa options, Afshar said.

“I think everything is on the table” for potential change in the Trump administration, Cohen said.

But “there will be time for employers to figure out what to do,” Afshar said.

To contact the reporter on this story: Laura D. Francis in Washington at lfrancis@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com

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