Despite struggling to achieve legislative victories in the area of immigration, the Trump administration has caused a massive shift in the way immigration statutes are being interpreted and enforced, according to two immigration experts who spoke in a recent webinar.
Trump’s efforts to revamp the country’s immigration codes have been ineffective so far, said Prakash Khatri, an immigration attorney who served as the first Citizen and Immigration Services Ombudsman within the Department of Homeland Security.
Perhaps the most high profile example was the president’s executive order restricting entry into the U.S. by people from six predominantly Muslim countries, which was blocked by lower courts and awaits a final ruling from the U.S. Supreme Court later this year.
Trump has also backed a bill that would cut immigration in half, but it faces major legislative hurdles, Khatri said. "The challenge is that within each of the parties in Congress you have those who really support particular statutory changes to immigration, and others oppose them. So for Congress to come together to actually move forward on visa legislation is really going to take an act of God in a sense," he said.
Nevertheless, the administration has made its presence felt by stepping up enforcement efforts that bolster Trump’s focus on foreign nationals taking jobs away from Americans. "They are not changing immigration law or regulation but instead are focusing on provisions that already exist in a substantially greater way," Khatri said.
Federal enforcement agencies also have shifted their focus from employers to employees, said Jorge Lopez, an immigration attorney with Littler Mendelson. "What I’m seeing is that ICE (U.S. Immigration and Customs Enforcement) is requesting not only to review the employer’s documents on the employee but also to actually talk to the employee," Lopez said. "So they are going out in the field and asking employers to produce the employees."
Employees are also increasingly being removed from their workplaces following investigations. "I can’t say that ICE is doing it robustly but they are moving in that direction without a doubt," Lopez said.
Another development likely to occur in coming months is a substantial delay in visa processing at U.S. consulates overseas, Khatri said. This is due to several factors, including the removal of an executive order mandating speedier filing of visas at consular offices, a sharp drop in State Department staffing at these offices since Trump took office, and tighter scrutiny of visas.
Further delays in visa processing can be expected soon as a result of an announcement by U.S. Citizenship and Immigration Services (USCIS) that beginning October 1, 2017, it will no longer waive interviews for applicants seeking employment-based green cards. For the past two decades, these interviews were almost always waived unless the foreign national had a criminal record or some inconsistency in the individual’s application stood out.
Employers should also be aware that an increasing number of U.S. airports have now begun screening passengers who are exiting the country. This means employees who have overstayed on their work visa will not be allowed to re-enter the country on that same visa, Khatri said.
Given the changes that are taking place in the enforcement of U.S. immigration laws, HR departments must be more vigilant in their management of foreign workers. This is especially the case regarding workers who are covered by the Deferred Action for Childhood Arrivals, or DACA program. Trump’s recent decision to scrap the program means employers should immediately review the visa status of their foreign workers and prepare to possibly replace employees if Congress is unable to enact laws to protect DACA recipients.
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