Immigration Law

Trump and GOP seem poised to usher in sweeping changes in immigration policy

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President Donald Trump. Albert H. Teich /

Four years ago, Barack Obama had just won a comfortable re-election, buoyed, in part, by a resounding victory among Hispanic voters. Obama had trounced his opponent, former Massachusetts Gov. Mitt Romney, 71 percent to 27 percent among Hispanics, leading some Republicans to worry that they were fighting a losing demographic battle.

A few leading Republican senators, including then-2016 presidential hopeful, Marco Rubio, even begrudgingly accepted the need for comprehensive immigration reform and were even willing to consider controversial topics like pathways to citizenship, fast-tracking the green card process for certain skilled immigrants and reforming the visa process for low-skilled workers.

It’s safe to say that Donald Trump’s election has changed all of that.

Trump’s hardline immigration views were a centerpiece of his campaign—indeed, his announcement speech is probably most famous for his line about Mexico illegally sending over people who bring drugs and crime and commit rapes. During the campaign, he made several sweeping promises on the campaign trail, including building a 2,000-mile wall along the country’s southern border that would be paid for by Mexico, the immediate deportation of nearly 11 million immigrants living here illegally, and a potential ban on Muslim immigrants. Trump also vowed to rescind President Barack Obama’s immigration executive orders, including the Deferred Action for Parents of Americans and Lawful Permanent Residents, which allows parents of U.S. citizens or lawful permanent residents to remain in the country and receive work permits. Trump also decried the Obama administration’s policy of prioritizing the deportation of felons and criticized the administration’s vetting procedures in place for asylum seekers, especially from countries known to be or at least potentially hostile to the U.S.

While it remains to be seen just how many of his promises he’ll be able to fulfill, legal and political experts agree that Trump and the Republican Congress have an opportunity to effectuate a dramatic reshaping of immigration law and policy in the U.S. For instance, Congress is already at work looking at ways to pay for the initial construction of the Mexican wall, and the House of Representatives is debating a proposed bill that would make it more difficult for companies to apply for H1-B visas for foreign, skilled workers.

In fact, it’s the H1-B visa proposal that has some immigration experts concerned. Carl Shusterman, an immigration lawyer in Los Angeles who previously served as an attorney for the U.S. Immigration and Naturalization Service before starting his own firm in 1982, maintains that the press focused so much on Trump’s illegal immigration policies that they missed what he was saying about legal immigration.

He’s especially worried about the 10th point in Trump’s 10-point plan to reform immigration in the U.S.: “Reform legal immigration to serve the best interests of America and its workers, keeping immigration levels within historic norms.”

“’Historic norms’—what does that mean?” Shusterman wonders, noting that before the Immigration and Nationality Act of 1965, legal immigration into the U.S. was largely from northern and western European countries, and that groups from Asia and Africa were subject to restrictions and quotas. “Historically, our immigration norms were racially based. That went away in 1965, and it’s been gone since then. It’s shocking to me that these ‘historic norms’ could be revisited.”

Shusterman points out that reducing legal immigration by that much would probably require an abolition of family-based preferences, as well as the visa lottery. “Frankly, as an immigration lawyer who’s been on both sides of this, I do think we should have a more practical immigration system that would be based more on the skills of people coming in,” Shusterman says. “Congress could get rid of the lottery and the family category tomorrow if they wanted to. But what would you do about the 4 to 5 million people on the waiting list? Do you throw them under the bus? Do you grandfather them in?”

Shusterman notes that a radical reduction in legal immigration could have disastrous implications for the United States. Shusterman points to tourism, hospitality, medical, informational technology, and higher education as industries that could take huge hits if there’s a reduction in legal immigration. “If you walk around my alma mater of UCLA, probably one-third of the people you see are students from mainland China here on student visas,” Shusterman says. “They pay out-of-state tuition. If you turn them away, then in-state tuition goes haywire.”

Indeed, the business community, as a whole, is concerned about the implications of a Trump presidency on immigration law. Bo Cooper, a partner at immigration giant Fragomen Del Rey, Bernsen & Loewy, says that employers will need to consider the immigration implications of nearly everything they do—even if there’s no direct link to immigration. For instance, Cooper observes that Trump’s videotaped speech outlining his first 100 days contained a specific promise to require agencies to step up their investigation of visa program uses to ensure they weren’t harming U.S. workers.

“A lot of attorneys are counseling companies to make sure their compliance programs are in strongest shape possible—even in areas you wouldn’t traditionally think of as affecting immigration,” Cooper says. “GCs and compliance officers in companies are increasingly realizing that vendor arrangement policies can have very important immigration components. Likewise, if you’re advising a company on a proposed outsourcing of one of its functions, it is essential to involve immigration counsel in that process.”

William Stock, founding member of Klasko Immigration Law Partners and President of the American Immigration Lawyers Association points to the pending nomination of Alabama Sen. Jeff Sessions as U.S. Attorney General as a sign that Trump and his administration will be ideologically committed to the idea of lower levels of immigration. Stock points out that Sessions, one of the most hardline immigration senators in Washington, will be able to set the tone for how the government deals with immigration by providing legal guidance to the rest of the government as to what the law means and how it should be interpreted. For instance, he can strip procedural protections from immigrants in certain proceedings and can issue binding decisions that interpret statutes in certain ways

“He’ll have a powerful voice in shaping regulatory proposals,” Stock says. Indeed, Stock believes that Sessions will be right at home in a Trump administration. “Let’s not forget that this will be an administration where one adviser has said there are too many Asian CEOs in Silicon Valley,” Stock says. “There are 6,000 jobs Trump has to fill. How many of them are going to be like Kris Kobach?” Kobach is a Kansas Republican who helped draft Arizona’s controversial SB 1070 immigration law.

On the other hand, getting Congress to pass a legal immigration reform bill might not be as easy as it seems. Jessica Vaughan, director of policy studies at the conservative Center for Immigration Studies, notes that there is tension within the GOP over whether to restrict legal immigration. The big-business-oriented wing of the party generally supports increased legal immigration, and Vaughan sees Speaker of the House Paul Ryan falling into that category.

“Speaker Ryan is generally in favor of relaxing controls on legal immigration, so I think there’s the potential for some tension that could block real reform if he and Trump don’t see eye-to-eye,” says Vaughan. “I do think Speaker Ryan is out of step with most of his caucus, and we’ve seen that already within the last year on a number of other issues.”

In the meantime, experts expect a dramatic uptick in law enforcement activities relating to immigration. “One thing he can do immediately is change the bureaucratic imperative,” Stock says. “Under Obama, [Immigration and Customs Enforcement] has been focused on quality rather than quantity and deporting the most dangerous people.” Stock expects that that Trump will, instead, tell ICE and other law enforcement officials to focus on quantity and deport as many people as possible. “That means, they’ll probably be going to worksites more often, as well as neighborhoods with large immigrant communities and sort out those who have documentation and those that don’t. Those actions will have consequences—especially when it comes to developing trust between immigrants and the federal government.”

Vaughan agrees and says she expects a complete review of all of the policies, practices and guidelines of all of the immigration enforcement agencies—including ICE, the United States Citizenship and Immigration Services, and other agencies like the Department of Labor and the Department of State—to weed out anything that might be getting in the way of enforcement. “I hope the new administration will resuscitate worksite enforcement and begin devoting resources to that. Maybe they can reorganize funds that were diverted away from that due to Obama. A lot of illegal immigrants are here because they overstayed their visas. That’s why you need worksite enforcement. As long as there’s a benefit to crossing illegally, they’ll keep trying to come no matter how much fencing or walls we put up.”

It might not be all bad news for immigrants living here without legal permission. For one thing, experts are near-unanimous in their assertion that Trump cannot simply deport every single immigrant here illegally: There’s a lack of resources, a three-year-plus backlog in immigration courts and due process considerations. Additionally, as Kerry Bretz of New York immigration firm Bretz & Coven points out, there are at least 1 million or more immigrants who would like to take advantage of a provision in immigration law that allows for cancellation of removal after 10 years of good behavior and a showing that removal would result in extreme hardship to the immigrant’s family members who are citizens or lawful permanent residents. Because the Obama administration prioritized removal of felons, these immigrants never got put into removal proceedings, thereby preventing them from applying for cancellation of removal.

“Some probably have good cases,” Bretz says. “The just can’t get into removal proceedings. It used to be you could just walk into the ICE office and put someone into a proceeding so he or she could apply for cancellation. If Trump plans on putting these people into removal proceedings, then many of them might actually be able to get what they want.”

Regardless of what Trump and Congress are able to accomplish, it’s indisputable that they have significantly changed the tone of the national discourse when it comes to immigration. For Vaughan, the election was vindication that more restrictive immigration laws are necessary.

“Americans have seen the problems when immigration laws are not enforced,” she says. “The results of that are Americans and legal immigrants are crowded out of certain job opportunities. We’ve also seen the costs of social services go up, as well as increased public safety problems. This has been building for a while, and I think people were ready for a change.”

On the other hand, Stock and others argue that it’s incumbent on them to prove that this nation of immigrants thrives when it allows more people in through the gates rather than turn them away. “In the longer term, we have to make the case why immigration is good for America and defend every immigration program there is,” Stock says.

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