As a follow up to last week’s blog regarding potential immigration impacts following the U.S. election, following are some important updates.

First, some of the President-elect’s immigration platform has been revised on his website, including:
1. Establishing new immigration controls to prioritize jobs and wages for American people first.
2. Selecting immigrants based on their likelihood of success in the U.S. and their ability to be financially self-sufficient.
3. Immediately ending work authorization for Dreamers (Deferred Action for Childhood Arrivals).
4. Suspending the issuance of visas “to any place where adequate screening cannot occur, until proven and effective vetting mechanisms can be put into place.”
5. Increasing employer obligations to verify work authorization of all employees.

There are also some additional facets to the President-elect’s immigration position that are emerging, including:
1. TN Canadian and Mexican Professionals. TN employment authorization is derived from the North American Free Trade Agreement (NAFTA). The President-elect has called NAFTA the worst trade deal the United States has ever signed and pledged to withdraw from the agreement. While TN status is set in the immigration statute passed by Congress, a President likely has the authority to withdraw from the trade agreement without congressional approval. This would be the first time in modern U.S. modern history that a President would unilaterally withdraw from a trade agreement. These unchartered waters pose risk for employers who have TN employees. Therefore, we have crafted a strategy that may enable a TN employee to obtain an alternative, more secure immigration status. Because the process is lengthy, it is important to start the process quickly.
2. Two-year mandatory minimum federal prison sentences for illegally re-entering the U.S. after a previous deportation, and 5-year mandatory minimum sentences for illegally re-entering for those with felony convictions, multiple misdemeanor convictions, or two or more prior deportations.
3. Reforming visa rules to enhance penalties for overstaying.
4. Establishing new screening procedures for immigration “to ensure those who are admitted to our country support our people and our values.”

On the other hand, since November 8, the President-elect appears to have softened some of his immigration stances, including:
1. In relation to building an impenetrable wall across 2,000 miles of the southern border and requiring that Mexico pay for the wall, he has stated that some sections of the border could do with just a fence. It is worth noting that there is already approximately 200 miles of fence along the border.
2. In relation to the deportation of 11 million persons who entered the U.S. illegally, while we cannot be sure of the President-elect’s intentions or that he won’t take a more aggressive approach down the track, he recently indicated that his initial focus will be to deport only those undocumented persons who also have criminal convictions, which he estimates to number approximately 3 million. Under U.S. immigration law, undocumented persons who are convicted of serious crimes are already being deported. It could be inferred that he will expand the status quo to any crime, including lesser crimes such as shoplifting.

In breaking news this morning, the President-elect will nominate Alabama Senator, Jeff Sessions, to serve as Attorney General in the new administration. The Attorney General has wide-ranging powers with respect to the implementation, modification, and adjustment of our immigration law, and oversees the immigration court system which deals with matters including deportation. It is therefore of grave concern that Senator Sessions is the leading anti-immigration voice in the U.S. Senate with a clear history of advocating for severe visa restrictions and the drastic expansion of immigration enforcement. He has also not been supportive of practical reforms to our outdated immigration system. Fortunately, the appointment of Mr. Sessions will need to be confirmed by the U.S. Senate, which will likely include confirmation hearings. It is hoped these hearings will robustly challenge Senator Sessions’ anti-immigration views.

In a further sobering warning, an anti-immigration organization that appears to have the ear of the President-elect is also advocating for an even more restrictive immigration system. Examples of their positions can be found at this link.

We will continue to monitor developments during this deeply uncertain transition period and beyond, and will keep you informed of any proposals or substantive changes that will affect our U.S. employer and foreign-national clients. We will also continue to advocate against any proposed reforms that adversely impact due process, constitutional rights, civil liberties, or basic principles of justice.