High-Skilled Immigration Policy Under President Trump
Donald Trump’s surprise victory in the presidential election has upended the political and policy landscape for immigration. It will still fall to Congress to make substantial changes to the immigration system, but the Trump administration will have authority to reshape the lives of hundreds of thousands of unlawful immigrants and influence the ability of US companies to access and retain highly-skilled foreign workers. This paper explores how the Trump administration will approach the issue of immigration and analyses how administrative reforms will impact US companies.
With the presidential inauguration only a week away, President-elect Trump is busy selecting the political appointees who will serve in his administration. Personnel is policy, and dozens of political appointees, across four different cabinet-level agencies, will influence the direction of the Trump administration on immigration policy. DHS has assumed primary responsibility for immigration policy, particularly with respect to legal immigration, since its creation in 2002. The Director of US Citizenship and Immigration Services [USCIS) and the Director of Immigration and Customs Enforcement [ICE), within DHS, are also Senate-confirmed positions and will play important roles in developing and prioritising new immigration policies.
The Department of Justice and the Department of State will also play key roles in developing and implementing new immigration policies. Each department has a unique role in the immigration system, and it is common for there to be competing views within an administration. For example, a change in immigration enforcement priorities by the Department of Homeland Security could affect resource demands at the Department of Justice or it could negatively affect foreign relations discussions.
Regulations published during the final three months of an administration are referred to as “midnight regulations,” and it is common for outgoing administrations to publish regulations to advance their policies or make it more difficult or time consuming for the incoming administration to reverse the policies. Today, the Obama administration is discussing which regulations should be issued before January 20, 2017 and, due to limited capacity at the Office of Information and Regulatory Affairs, difficult choices must be made within weeks.
OBAMA’S MIDNIGHT REGULATIONS
A little-known statute called the Congressional Review Act (CRA) could become relevant in the months ahead. That statute states that the US Congress can rescind a major regulation (impact of over $100 million) if it was issued within the last 60 legislative days, and only a simple majority in the US Senate is required for rescission. The CRA has only been used successfully by Congress on one occasion, but the dynamics in 2017 of a Republican-controlled Senate, House of Representatives, and White House could mean that Congress will closely scrutinise midnight regulations issued by the Obama administration.
RESCINDING OBAMA’S EXECUTIVE ACTIONS
A centrepiece of Donald Trump’s campaign was his promise to rescind Obama’s executive actions on immigration reform. Obama’s most impactful policy proposal – to grant Deferred Action to approximately four million unlawful immigrant parents of US citizens and green card holders – was enjoined by a federal court and never took effect. But the Obama administration did successfully implement many other policy memoranda and regulations that, if fully implemented, would afford some form of lawful status or work authorisation to approximately 1 million individuals.
The Trump administration will seek to modify or rescind many of these policies, though it is difficult to forecast the scope and timeline of those changes. Given the huge number and broad range of individuals who would have benefited from Obama’s executive actions (combined with Trump’s proposals for heavy-handed enforcement against unlawful immigrants), there is a high degree of anxiety within the immigration community.
Generally, a new administration that seeks to withdraw a policy must follow the same legal procedures that the prior administration used to implement the policy. This means the Trump administration could issue a policy memo to withdraw a policy memorandum, but would need to go through the rulemaking process to withdraw a regulation. There are several variables that can affect the timeframe for policy making, not least of which is the time it takes for any administration to settle on the specifics of a policy.
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This article was provided by AmCham member Berry Appleman & Leiden LLP, a global corporate immigration law firm with offices in Sydney, Singapore, Geneva, London, Rio de Janeiro, Sao Paulo, and across the U.S. BAL manages the corporate immigration needs of employers around the world. In Australia, the wholly owned subsidiary known as Berry Appleman & Leiden Pty Ltd operates as a business dedicated to supporting migration services in Australia and throughout Asia Pacific.
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