Trump: Campaign Promises and Priorities
During the campaign, Trump issued a 10-point plan for overhauling the immigration system. The plan focused on building a wall along the US-Mexican border and other enforcement measures, but Trump also called for a reduction of legal immigration and new “immigration controls to boost wages and to ensure that open jobs are offered to American workers first.” Based on his stump speeches and the positions he took during the primary and general election debates, Trump is expected to focus on the following priorities:
A priority of the Trump administration will be to show progress on his commitment to build an “impenetrable” wall. Experts disagree on how much it would cost to complete the wall (approximately 670 miles exist today along a 2,000-plus mile border), but there is little doubt that the cost far exceeds current appropriations from Congress. Trump has stated that he will use his authority to tax remittances to Mexico to pay for the wall, but pursuing that option will take many months and will face many obstacles. We should expect that he will look for quick progress (shifting existing appropriations or sending the National Guard to the border), followed by a request to Congress for additional appropriations.
Donald Trump has stated that he will impose “extreme vetting” on travellers from certain regions of the world. This could take many forms, including a resurrection of the post-9/11 “special registration” program that required additional screening and exit requirements for travellers from certain countries. Civil liberties groups are concerned about religion-based screening, and business groups are concerned about the potential for travel disruption and a decrease in tourism and student enrolment in the US. Based on Trump’s campaign promises, we should expect some increase in security vetting for individuals who are either from or have travelled to certain countries or regions.
President Obama’s first major executive action remains his most significant: granting Deferred Action to approximately 700,000 individuals who came to the US unlawfully before the age of 16 (“Deferred Action for Childhood Arrivals” or DACA). The first DACA program, implemented in 2012, was never successfully challenged in court and was not part of the Texas vs. US legal proceeding. Nevertheless, there is a significant possibility that the Trump administration will seek to end or phase out the DACA program. Even if Trump elects to phase out DACA and not renew Employment Authorisation Document (EADs) issued to DACA recipients, approximately 50,000 individuals would lose status each month. This could mean that companies will be required to terminate the employment of DACA beneficiaries at the time their employment authorisation is rescinded or expires.
There is no precedent for the creation or termination of a program that is of the scale of DACA, so the government will be in unchartered territory. Students and universities around the country are already rallying to the defense of DACA beneficiaries and we expect that any change to the DACA program will result in unprecedented public protests in person and through social media. Absent further action by the Obama administration, Trump would be able to rescind or modify DACA via policy guidance.
A sanctuary city is not a defined term, but it generally refers to any city or jurisdiction that violates federal law by refusing to share information with federal authorities. Sanctuary cities have been around for decades, and the federal government has authority to withhold federal funding as a means of forcing cooperation. Post-election, many jurisdictions – including Chicago, New York City, Portland, San Francisco and Seattle – have already announced that they will not cooperate with federal law enforcement actions against unlawful immigrants. We expect that the Trump administration will adopt a more aggressive position against sanctuary cities and will leverage all of the federal government’s legal tools to punish those jurisdictions. But politicians in sanctuary jurisdictions often have the strong support of the people who elected them, which could set up a volatile conflict between federal officials and state and local jurisdictions.
Trump’s 10-point plan calls for the US to “turn off the jobs and benefit magnet” for undocumented workers, which presumably means that his administration will seek to expand the use of E-Verify. The federal program is voluntary for most employers, though many states now impose E-Verify obligations on some or all employers. The Bush administration sought to expand use of the program by requiring federal contractors to use the system and by tying certain immigration benefits (e.g. STEM OPT) to use of the program. Due to statutory restrictions, Trump would need to pursue a similar approach as there is no simple way for the new administration to impose mandatory E-Verify on all employers in the US.
Employer participation has grown exponentially in the last ten years. In 2005, only 5,300 companies participated in E-Verify. Today, over 650,000 companies participate in E-Verify and a large percentage of new hires are now run through the electronic system.
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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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