Many of our clients are understandably concerned about changes that might result in the immigration system after Donald Trump’s election as President of the United States. To reduce fear of the unknown, we are sharing this explainer to outline how the Trump administration and a Republican-controlled Congress could impact the current American immigration structure. Much of this content is being used with permission of Scott Legal, P.C., who originally prepared it.
Admittance to the United States
President-elect Trump will have significant leeway when it comes to determining who can be admitted to the United States. The administration is allowed to stop issuing visas to applicants from certain countries without congressional approval, although it is unknown whether President Trump will take this step. At the very least, Trump-appointed officials at the State Department could increase the scrutiny applied to visa applications at U.S. Embassies and Consulates around the world.
The new administration will have tight control over the number of refugees allowed into the country, be they from Syria, Iraq, or elsewhere. Wielding this power could result in a dramatic decrease or cessation of refugees allowed entry from the Middle East, should the President-elect decide to fulfill certain campaign promises.
TN Visas for Canadian and Mexican citizens
The nonimmigrant NAFTA Professional (TN) visa allows Canadian and Mexican citizens to work in the United States in prearranged business activities. These visas are tied to NAFTA in its current form. On the campaign trail Trump repeatedly called for the U.S. to “rip up” trade agreements like NAFTA. While President-elect Trump will have the power to withdraw from the North American Free Trade Agreement, it is unlikely that he will do so. More likely is a renegotiation of the current deal – an idea that Mexican and Canadian officials have publicly supported. It is difficult to foresee immigration changes under a new deal, although trade agreement negotiations often take years to complete and discussions could continue past the life of the Trump administration. Therefore we believe that the immigration component of NAFTA will remain in its current form for the foreseeable future.
E-2 Treaty Visas
The E-2 nonimmigrant classification allows citizens of a country with which the U.S. maintains a treaty of commerce and navigation to be admitted to the United States when investing substantial capital in a U.S. business. (See our success in in obtaining E-2 status) Most E-2 countries have had a historically friendly relationship with the U.S., although some countries on the list, including Iran and Pakistan, have drawn the ire of President-elect Trump as well as previous administrations. While President Trump will have the power to cancel treaties, we believe it is unlikely that he will do so on a scale that will imperil the E-2 program, if at all.
President Trump can quickly eliminate the deportation relief President Obama granted to young people under DACAand DAPA without congressional approval. We hope this will not happen, as almost 724,000 “dreamers” currently hold DACA status in the United States. Should President Trump choose to reverse these executive orders, virtually all protected young people would be placed back in deportation proceedings.
Apart from the areas previously outlined, major immigration reform will have to originate in the Republican-controlled Congress rather than the executive branch. Recent immigration reform proposals drafted by a bi-partisan Senate committee included a number of changes, including a more streamlined immigration process, a pathway to legal status for undocumented workers, and changes that would make it easier for highly skilled workers to stay in the U.S. These and many other proposals – such as amnesty for the 11 million undocumented people living in the United States – will fall by the wayside in the next Congress, as reforms are more likely to focus on enhanced border security. It is unlikely that border security reforms will include funds for a wall along the Mexican-American border due to the incredible cost and scale of such a project, however funding for other measures that would enhance security will probably be approved.
During the course of the campaign, candidate Trump called for a “deportation force” to round up 11 million undocumented people living in the U.S. Much like the wall along the Mexican-American border, this was a position that may have been attractive to some voters on the campaign trail, but will be virtually impossible to enact once Trump takes office. The wildly expensive program would require funding from a Congress that House Speaker Paul Ryan has already stated will not create a deportation force. There are, however, two practical deportation policies that President Trump could pursue with less resistance from Congress. The first option prioritizes the deportation of convicted criminals. In pursuing this course of action, Trump would reinforce the policies put in place under President Obama. The second option would encourage existing government agencies to raid factories, work places, and homes – a reversion to the policies in place before President Obama. The latter is undoubtedly worse for undocumented individuals, as they would likely live in near constant fear for the next four years.
What you can do
- If you have held a Green Card for 5 years (or 3 years through marriage) you should consider immediately applying for citizenship
- If you are eligible for a Green Card category, you should consider filing your paperwork immediately
- Avoid criminal arrests or other poorly perceived conduct in the U.S.
- Prepare petitions with care. Small errors or improper documentation will hurt your application.
- Apply for non-immigrant visas prior to January 20, 2017 (inauguration day). E-2 visas are often granted for 5 years, beyond the length of the Trump administration’s first term