In our September blog, we outlined the respective immigration positions of the Presidential nominees of the Republican and Democratic parties. The elections are now over and the results are in, with the Republican Party taking unified control of both the House of Representatives and Senate, as well as the White House.

Perhaps like no other in history, this election has magnified uncertainty and heightened concern for a lot of our clients and the broader immigrant community. America’s shared prosperity has always, and will continue to rely on the innovation and creativity of immigrants from all over the world, from all walks of life, and from all faiths and cultural traditions.  As an exclusively immigration law firm, we will roll up our sleeves, work harder, and advocate more fiercely for our foreign-national and U.S. employer clients. Together we will navigate the murky waters that may lie ahead.

What Can We Expect During The Next Two Years?
With unified control of the White House and both the House of Representatives and Senate (for at least the next 2 years), the Republican Party has a golden opportunity to present – and more easily pass – new legislation and reforms. While their initial focus in 2017 will likely be on “big ticket” legislation in healthcare, tax, and entitlement programs, immigration reform was central to the President-elect’s campaign, with his platforms including:
• Building a wall across the southern border and requiring that Mexico pay for the wall;
• Tripling the number of U.S. Immigration and Customs Enforcement (ICE) officers and detaining foreign people apprehended crossing the border;
• Banning nationals from Syria and Libya from entering the U.S. (and possibly a broader ban of all Muslims) until vetting mechanisms are in place; and
• Providing no path to legal status for undocumented migrants currently in the U.S
Of course, attempts at many of these goals will face significant logistical—and legal—challenges.

We expect that the President-elect will appoint a new Secretary of Homeland Security early in his term.  Who he chooses will provide important clues on what to expect in terms of the timing and magnitude of any immigration reform.

How easily can the new administration change immigration laws?
There are essentially three vehicles for change:
i. Executive Actions, policies, and interpretations of law: The President can use one or a combination of these means to relatively quickly impose new changes and reverse current programs and policies, including overturning programs such as Deferred Action for Childhood Arrivals (DACA) (see further below); broadening prosecutorial discretion regarding whom to put in deportation proceedings; promoting a culture of more vigilant enforcement; and otherwise promoting policies and interpretation of immigration laws to disadvantage immigrants.
ii. Immigration Regulations: The President can also change immigration regulations, but not quite so easily. While regulation changes do not require the approval of Congress and can be done by the executive branch, regulatory change does require the formal proposal of new regulations, a formal public comment period, and ultimately the finalization of the new regulations.  As this vehicle takes more time and effort, there is unlikely to be any real risk in the near future to current regulations regarding STEM OPT (see our March blog) or provisional waivers (see our July blog).
iii. Immigration Statutes: Any legislative changes must be first debated and passed in Congress before being signed into law by the President.  This is a much longer and involved path so is likely to be used only for significant proposed changes to immigration laws, for example, any changes to the pathways to a green card or the categories of employment-based visas.

What specific aspects of immigration can we expect to be in the spotlight?
It is hard to say where the focus will turn and to what extent, but we outline as follows some possible changes that are most likely to affect our clients:
i. H-1B professionals: There is unlikely to be any expansive reform. If anything, the H-1B category may become more restrictive. For example, the President-elect is in favor of controlling the admission of new foreign-workers and enforcing a “hire American workers first” policy by increasing required wages for the H-1B employees (to encourage companies to give jobs to sometimes less-qualified U.S. workers). There is also unlikely to be any increase in H-1B visa numbers. While the establishment and business community favor increasing H-1B visa numbers, current prevailing sentiment from the new administration is anti-globalization and putting Americans first, both values that would logically restrict the
H-1B category, rather than expand it.

We therefore recommend that all H-1B extensions be submitted as close as possible to 6 months before the current expiration date. We also have a valuable creative strategy that may help employers and employees keep open the possibility of permanent residence while not being at mercy of H-1B visa lottery.  We expect that there will not be sufficient time for the new administration to make any significant changes for the upcoming H-1B “season” when preparation of H-1B applications begins in January 2017 for submission April 1, 2017.

ii. LGBT immigrants: While the Vice-President-elect has a clear anti-LGBT agenda, LGBT immigrants are not likely to be under imminent threat from the new administration’s policies, at least in the short-term. The biggest concern is green card eligibility through federal recognition of same-sex marriage. This concern becomes much more real if the President-elect’s Supreme Court nomination(s) is(are) socially conservative, as expected.

iii. Deferred Action for Childhood Arrivals (DACA): The President-elect has clearly states that he will repeal DACA, which currently provides temporary protection to undocumented younger people who have grown up in the U.S., graduated high school, and have no criminal records. This could occur as early as end of January 2017 via Executive Action.  The impact on immigrants, their families and their employers will be significant. The voices of those affected will be vital to humanizing this issue and persuading the current administration that any proposed repeal of DACA is unfair and unduly burdensome on American families and American employers; put simply, Un-American.

iv. Deportation of 11 million undocumented immigrants: This proposal is not likely to happen quickly. Congress will need to fund such a large-scale program to start. (More details at: https://www.washingtonpost.com/news/wonk/wp/2016/11/09/what-it-will-take-for-president-trump-to-deport-millions-and-build-the-wall/)  However, if implemented, this may result in increased raids and U.S employer site visits. This phenomenon is not new and we continue to be available to any affected U.S. employer clients.

v. Asylum and Refugee Status: The President-elect has stated that he wants to increase standards for the admission of refugees and asylum-seekers, but the details of this proposal remain to be seen.

Conclusion:
Any transition of government is difficult, but this one is likely to be one of the most drastic for immigrants.  America is a nation built by immigrants and strengthened by each new generation. Dayzad Law Offices, in partnership with all of you, is committed to confronting the challenges that lie ahead. We will protect our U.S. employers and all foreign-nationals by ensuring that you are afforded due process, and that your constitutional rights and civil liberties are upheld. We will also work with our peak industry bodies and immigration law colleagues to highlight injustices and expose poor decision making and abuses.  For our clients, we will continue to give considered thought, thorough analysis, and comprehensive recommendations for each immigration circumstance and application.