Throughout the campaign, President-Elect Trump made U.S. immigration law issues one of his cornerstones. Generally, Trump’s immigration ideology did not seem to address highly-skilled business immigration. President-elect Donald Trump’s 10-point immigration plan seemed to be squarely focused on undocumented immigration and border security and he did not seem to set forth any clear or specific initiatives that would alter the business immigration landscape.
Reform of the business immigration system is not likely to be a priority for the Trump Administration. However, The potential for business immigration reform may be subsumed in employment and labor related proposals for the new administration. The President-elect has promulgated a platform for U.S. business aimed to “boost wages and to ensure that open jobs are offered to American workers first.”
While this general statement does not offer any specific proposals, it leads us to believe that the President-elect will be dedicated to protecting the U.S. labor market. It is also appropriate to acknowledge the President-elect made frequent allusions to renegotiating trade agreements and such renegotiations could impact the business immigration law arena. For example, some of the U.S. trade agreements have provisions in them that clearly impact highly-skilled workers and business immigration. Additionally, any changes to the background check or security clearance processes (which was one of the points in Trump’s 10 Point plan) are likely to impact all visa applicants, including highly-skilled workers.
It continues to be the case that the prospect of change creates uncertainty. However it is important to note that any significant changes to the business immigration system are not likely to be sudden or to be based upon executive actions. Our clients and prospective clients are reminded that most of the major programs that comprise the business immigration system—including H-1B and L-1 visas, and labor certification (PERM) applications—are based upon statutes enacted by Congress and the implementing regulations by the respective U.S. administrative government agencies. Any changes to the current framework requires action by Congress and/or formal rulemaking under the Administrative Procedure Act (APA). These procedures are not likely to be quick to happen and they are likely to receive input from a variety of groups affected by such proposed changes. In addition, it is likely that any “executive action” would likely be adjusted so as to be limited to the interpretation of existing regulations. Thus, consistency in prior interpretation and or policy is likely to be prevalent.
It is important to remember that changes to certain systems-such as the business immigration law system may not be bad. The U.S. business immigration model is based upon 20th century laws that are struggling to keep pace with 21st century business practices. U.S. employers (and foreign national employees) continue welcome novel immigration proposals that seek to attract and retain top talent, enhance competitiveness in a global economy, and align with the pace of real-world business practices. Proof that this continues to be the case is the continuing revisions to rules and regulations that have been promulgated by the Obama Administration. Changes that alleviate the uncertainty of the H-1B quota system, or reduce the significant backlogs for many green card applicants, are just two of the many initiatives that would assist U.S. employers and would stand to modernize our business immigration system.
While the iniatives for business immigration reforms by President-elect Trump are too early to predict, it remains clearly to be case that President-elect Donald Trump means “business” and that, at some point, the business immigration lobby is likely to have a good “seat at the table” for proposing revisions to antiquated laws a