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On November 10, 2016, Laura Foote Reiff, Bob Maples, and Rebecca Schechter presented an Immigration Post-Election Update webinar highlighting some of the anticipated key changes to U.S. immigration policy (click here to listen to the webinar).  President-elect Donald Trump will likely begin the change on current U.S. immigration policy as soon as he takes office.  Laura Reiff and Rebecca Schechter highlight below what to expect:

  1. Repealing Executive Orders:  President Barack Obama’s Executive Order for Deferred Action for Childhood Arrivals (DACA) will likely be repealed.  DACA is not a status, but rather, it allowed certain undocumented persons apply for work authorization.  If DACA is repealed, the work authorization is no longer valid, and the question remains as to whether any further actions will be taken for these individuals.
  2. Mandatory E-Verify:  It is likely that legislation will be proposed that makes E-Verify mandatory for employers.
  3. Increased Enforcement:  With President-elect Trump’s stance on immigration, employers will likely see more audits from USCIS and the Department of Labor, as well as more raids.  The enforcement will focus on ensuring that employers are not hiring undocumented workers, and that jobs are not taken away from qualified U.S. workers.
  4. Building the Wall:  A constant promise of President-elect Trump’s campaign has focused on building a wall on the U.S.- Mexico border.  The wall is part of a larger plan for enforcement and border security, and it remains to be seen how this project will be financed.
  5. Extreme Vetting for Visitors into the U.S.:  President-elect Trump has stated that he will temporarily suspend immigration for those who come from countries deemed dangerous and considered dangerous and volatile.  “Extreme vetting” will most likely mean more intense scrutiny of  citizens from countries that are considered “high-risk” and a deeper security review.
  6. H-1B and L-1 Nonimmigrant Visas:  Another of President-elect Trump’s focuses during his campaign was on preserving jobs for American workers.  To do so, it is anticipated that there will be more vetting and more requirements an employer must meet in order to petition for a foreign worker to work in H-1B or L visa status in the United States.    This will most likely include additional scrutiny of the staffing industry’s placement of H-1B and L visa holder’s at third party sites.
  7. Treaty Visas:  President-elect Trump has stated that he will renegotiate a number of treaties, one of which is the North American Free Trade Agreement (“NAFTA”).  One provision of NAFTA allows for the movement of Mexican and Canadian citizens, who qualify under certain requirements in specific job categories, to lawfully work in the United States.
  8. Expiration of Four Immigration Programs:  We are currently in a “lame duck” session, and the four programs – E-Verify, the “Conrad Waiver” for Rural Doctors, Religious Workers, and EB-5 Regional Center Program –  have been temporarily extended in the Continuing Resolution until December 9, 2016.  It is anticipated that there will be another short-term extension into February or March 2017.

Bob Maples, a federal lobbyist for the firm, commented that “for those businesses that have depended on Washington gridlock to protect you, it is time to make new plans as a Republican controlled Administration and Congress have the opportunity to get things done.”  These are statements President-elect Trump made during his campaign. His policies and his ability to implement his statements may be different.

Greenberg Traurig will continue to monitor the transition period as well as President-elect Trump’s first 100 days in the White House and will continuously update on important developments.

On Oct. 5, 2016, the U.S. Department of State (DOS) issued an unclassified cable on the Continuing Resolution signed into law on Sept. 29, 2016 that extends several important immigration programs, including the Conrad State 30 Program, the non-minister special immigrant religious worker program (SR visa), and the EB-5 Regional Center program. The House and Senate passed the Continuing Resolution on Sept. 28, 2016, and the president signed the bill into law on Sept. 29, 2016 (H.R.5325; P.L. 114-223).

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The DOS cable explains that the EB-5 Regional Center program (immigrant visa categories R51 and I51) now is set to expire on Dec. 9, 2016.  The DOS has clarified that all EB-5 immigrant visas based upon investments made in regional center projects must be issued by close of business Dec. 9, 2016; the expiration date also applies to dependent spouses and children.  The DOS has instructed all visa issuing posts to hold in abeyance any pending R51 and I51 immigrant visa applications beginning on Dec. 10, 2016, if there is no extension of the EB-5 Regional Center program on or before that date.  The cable also clarifies that immigrant visas for investors not investing through a regional center (T51 and C51), i.e., the “direct” or “non-regional center” program, can continue to be issued as that program remains valid beyond Dec. 9, 2016.

In addition, the DOS cable confirms that extension of the EB-5 Regional Center program through Dec. 9, 2016 will allow priority dates to immediately become “current” for October for all countries except mainland China.  The “current” priority date for China-mainland born I5 and R5 applicants is Feb. 22, 2014.  Accordingly, China mainland-born investors with an I-526 Petition filed after Feb. 22, 2014, do not have immigrant visas immediately available to them and they must wait until the priority dates in the Visa Bulletin advance further.

The cable further discussed the expiration of the Conrad State 30 Program, which also will expire on Dec. 9, 2016. The Conrad 30 program allows medical doctors on J-1 visas to apply for a waiver of the two-year home residence requirement under INA §212(e) upon completion of the J-1 exchange visitor program.  The cable clarifies that applicants who entered or were granted J-1 status on or before Dec. 8, 2016, may still apply for a Conrad State 30 waiver.

Finally, DOS stated in the cable that authorization for the SR visa, which is for professional and non-professional workers within religious vocation or occupation categories other than the vocation of a minister, will expire on Dec. 9, 2016.  This expiration relates to immigrant visa recipients and their accompanying spouses and children only, and does not affect any nonimmigrant categories such as R-1 visas.  Individuals seeking SR visa status are required to have applied for such status and be admitted into the United States prior to Dec. 9, 2016. DOS has instructed visa issuing posts that the validity of any SR visa issued, therefore, must be limited to Dec. 8, 2016, to coincide with the expiration of this classification.  Posts that have issued SR visas in recent months should consider informing the recipients that they must travel by Dec. 8, 2016. Moreover, Posts that issue SR visas in December should consider informing the individual of the expiration date and necessity of traveling before the expiration date. If the visa holder is not admitted into the United States before the program expires, replacement visas cannot be issued. Beginning Dec. 9, 2016, posts are advised by the DOS to hold in abeyance any pending SR application.

The cable also explains that the DOS Visa Office (VO) will continue to provide guidance as the appropriations process continues.  In December, following the federal elections, Congress is expected to reconvene for a “lame duck” session.  At that time, Congress will once again consider the extension of these vital visa programs.

For more information regarding the extension of the EB-5 program, please subscribe to the Inside Business Immigration blog and see Greenberg Traurig’s EB-5 Insights Blog.

On Dec. 14, 2015, USCIS released the Visa Bulletin Charts for January 2016, in conjunction with the Visa Bulletin, USCIS announced that Family-sponsored immigrant visa applicants may use the “Dates of Filing” chart for January 2016 for filing adjustment of status applications, but Employment-based applicants must use the “Final Action Dates” chart for January 2016.

Mr. Charlie Oppenheim, chief of the Visa Control and Reporting Division of the U.S. Department of State (DOS) provided his analysis of the current and future trends for different visa categories to AILA. We summarize the following from Mr. Oppenheim’s analysis and projections: 

Employment Based: 

EB-2 India:

The final action dates for EB-2 India will advance eight months to Feb. 1, 2008.  Charlie indicated that the eight month advancement will continue to be the best case scenario, but the actual advancement may be around four to six months at a time. He also expects an increase in petitions seeking an upgrade from EB-3 to EB-2, which may impact demand and slow the advancement of the EB-2 India category, in early to mid-2016. 

EB-3 Worldwide:

In January 2016, the final action date for EB-3 Worldwide will advance by one month to October 2015. Charlie pointed that there has been more demand in this category than was reported to him by USCIS. He does not anticipate this category advancing very much in the coming month. 

Religious Workers and EB-5:

On Dec. 16, 2015, another continuing resolution was signed by the President, keeping the Federal government open and both the EB-5 and religious worker programs operating until Dec. 22, 2015. If the 2016 Omnibus Spending Bill is passed and signed prior to Dec. 22, 2015, the EB-5 and Religious Worker Programs will be extended through September 2016. Charlie indicated appointments for these two categories are continuing to be scheduled.

Although Congress continues to discuss the Fiscal Year 2016 budget, if an agreement is not reached or continuing resolution passed, the Department of Labor (DOL) will experience a shut down as of October 1, 2015. Should this happen, both the iCERT and PERM online filing systems will not accept applications and users will no longer have access to the system.  This shutdown will impact immigration cases including: E-3, H-1B, H-2A, H-2B, and PERM applications. In addition, the DOL will not be able to receive or review any filings received by mail. Employers are urged to review their upcoming expiration dates and deadlines to ensure they submit all necessary applications and responses on or before September 30, 2015.

Congress returns to Washington, DC with very few days to accomplish much, and many new reasons or excuses not to “get to” Immigration Reform. Faced with immediate and pressing issues, such as a continuing resolution to prevent a government shutdown at the end of September, the sequester and debt ceiling debate and the impending Syria crisis votes, it seems quite clear that Immigration Reform will be pushed off again. As reported in early August, the U.S. House of Representatives has made some progress at the committee level on Immigration Reform, but the ability and willingness to move legislation to the floor with less than 35 days in session seems very unlikely. Can Congress address Immigration Reform in 2014? It certainly can, but whether it will, depends on the ability to do so well in advance of the 2014 election cycle. It will also be critical to overcome innate inertia and what we have referred to as the culture of “no” to make immigration reform a possibility.