What Will Happen in Immigration Enforcement?

What We Know

Shortly after November’s election, we released an alert addressing the immigration-related targets for President Donald Trump’s administration. Just a few days after his inauguration, President Trump has taken executive action to advance his top immigration priorities: enforcement and national security.

On Wednesday, President Trump signed two executive orders, titled “Border Security and Immigration Enforcement Improvements” and “Enhancing Public Safety in the Interior of the United States.” These orders put into immediate effect, pursuant to President Trump’s executive authority, several mandates:

Enforcement and Removal

• Empowerment of newly confirmed Department of Homeland Security Secretary John Kelly to give authority to State and local law enforcement agencies “to perform the functions of immigration officers.”
• Defunding of “sanctuary cities,” or those with laws, policies, or practices that prevent or hinder immigration enforcement.
• Reinstatement of “Secure Communities” and termination of the Obama administration’s recent prioritized enforcement policies.
• Prioritization of removal of immigrants who are inadmissible on criminal, security, or unlawful presence grounds, as well as extensive inclusion of immigrants with criminal charges or convictions, who have made misrepresentations to government officials, fraudulently received public benefits, or who have outstanding orders of removal.
• Collection of all legal fines and penalties against those who aide unlawful immigrants.
• Exclusion of non-U.S. citizens or permanent residents from the Privacy Act regarding personally identifiable information.

Border Security

• Commencement of the planning, design, and construction of a physical barrier along the southern border, along with assessment and allocation of Federal funds and projection of long-term funding requirements for the purposes of requesting Congressional funding.
• Termination of “catch and release” practices, meaning those detained at the border will stay in detention pending resolution of immigration proceedings.
• Increase of “legally available” resources toward immigration detention efforts on the Southern border, including assignment of asylum officers and immigration judges, building detention facilities, and hiring of 5,000 border patrol agents.
• Assessment of U.S. foreign aid provided to Mexico in the past 5 years.

Trump’s Cabinet

On Jan. 21, General John Kelly was confirmed as Secretary of the Department of Homeland Security (DHS). During his confirmation hearing in early January, Kelly’s main immigration-related concern was that Customs and Border Protection should be allowed to fully execute its authority. He also advocated that, in response to the Central American migrant crisis at the Southern Border, the United States should actively support Central American governments’ efforts to restore public safety and economic opportunity in their borders, while also deporting migrants and targeting American drug use.

What We Believe May Happen in the Short Term

The greatest impact to employers and organizations within the United States from Wednesday’s executive order on immigration enforcement will be in the resulting shift toward State and local law enforcement taking action as immigration enforcement. It remains to be seen how this authority will be used, and it is likely that the response from state and local law enforcement will vary by jurisdiction. Regardless, with cooperating state and local law enforcement and increased Federal personnel, immigration enforcement against individuals and employers will rise.

Several additional executive orders are reportedly in the pipeline and could be signed as soon as today. President Trump is expected this week to sign an executive order that will overhaul security measures for all immigrant and nonimmigrant visa programs and mandate the immediate 30-day suspension of issuance of visas and immigration benefits to nationals of countries that are considered to support international terrorism. After that initial period, the order will call for denial of immigration benefits to persons from any country that does not comply with new information-sharing requirements instituted as part of the security measures. The order would also overhaul administration of the U.S. refugee resettlement program, temporarily halting acceptance of refugees (including those already approved for entry) and cutting the number of refugees the U.S. will accept in FY2017 to 50,000, from the 85,000 authorized by Congress.

The President is also expected to use his executive authority to repeal President Obama’s executive action program known as DACA (Deferred Action for Childhood Arrivals), to place limits and increase enforcement in lawful visa programs, and reduce immigrants’ access to public benefits.

Other likely targets for the new administration include efforts to limit legal immigration in the name of preserving American jobs and to require employers to use the now optional E-Verify employment eligibility verification system.

What We Don’t Yet Know

It remains to be seen how DHS will mobilize on the border security and internal enforcement executive orders. In addition, the orders raise many questions about how ramped-up enforcement will be funded. President Trump’s orders call for mass hiring of enforcement and administrative personnel, and the border wall has been estimated by some sources to cost $12-15 billion, though the cost is a matter of dispute. (President Trump, for his part, maintains that the cost will eventually be paid by Mexico — possibly through taxation and cessation of aid — although Mexico disputes that it will pay and Mexican President Enrique Peña Nieto said publicly today that he will not attend work meeting with President Trump that was planned for next Tuesday.) Funding for these projects must be approved by Congress.

Although the remaining expected executive orders have been leaked from reliable sources, exact details of President Trump’s planned reforms are not certain until they are officially released. The discussion below addresses two prominent concerns for U.S. immigrants and their sponsors:

DACA

In December, then-President-elect Trump stated that DACA would be replaced with another solution for DREAMers, a term referring to young immigrants who have been unlawfully living in the United States since a young age and lack criminal histories (often students and young professionals). DACA has provided more than 740,000 DREAMers with work authorization and protection against removal as a “low priority,” but no backup solution currently exists for these individuals whose benefits President Trump plans to terminate. A permanent solution will almost certainly require likely Congressional action. On Monday, White House Press Secretary Sean Spicer confirmed that dissolution of DACA will not happen immediately, and for now, U.S. Citizenship and Immigration Services (USCIS) is continuing to accept and adjudicate DACA applications. That is unlikely to continue if President Trump issues an executive order terminating the program.

For Congress’s part, the BRIDGE Act (Bar Removal of Individuals who Dream and Grow our Economy), a bipartisan bill responding to President Trump’s promise to end DACA, was introduced to both Houses on January 12 by Reps. Mike Coffman (R-CO) and Luis Gutiérrez (D-IL) and Sens. Lindsey Graham (R-SC) and Dick Durbin (D-IL). The BRIDGE Act would essentially formalize the DACA program through the legislative process, providing “provisional protected presence” and work authorization to grantees. Those who have benefits under DACA would matriculate automatically into the solution created. The BRIDGE Act also provides that the identity information collected in DACA applications would not be utilized for enforcement purposes. This is particularly significant given that the incoming administration has not affirmed that this information would remain protected, as it was during the Obama administration. The likelihood of the bill’s success remains to be seen.

H-1Bs and FY2018

With the nearing application date for the Fiscal Year 2018 H-1B lottery, questions abound about the Trump administration’s plans for the high-demand professional visa. The administration has engaged in private discussions but has not publicly addressed planned changes to the H-1B program. Because the program is codified in federal legislation, any major changes would require Congressional action. President Trump has previously criticized the H-1B program, which has suffered in reputation in light of two high-profile lawsuits accusing companies of using the program to hire lower-wage foreign workers. However, President Trump has said that he favors bringing skilled talent to the United States. He is reportedly considering ways to alter the program, including increased required wage thresholds and changing the current lottery system of visa selection. There are typically far more H-1B applicants than there are available visas. No clear details have been announced regarding this program, however, and most stakeholders anticipate this year’s lottery will take place as usual.

What This Means for Employers

At this time, employers should continue sponsorship of foreign workers normally. Since enforcement is a clear priority of the incoming administration, we strongly advise all employers to conduct internal compliance audits to ensure that required records such as I-9s and LCA public access files (for those sponsoring H-1B visa holders) are properly maintained. Correcting any issues now, before a government compliance audit, can significantly reduce the risk of incurring high fines. Employers should also provide compliance training for staff and ensure that appropriate personnel is familiar with the company’s protocols regarding what to do in the event of an audit, site visit, or request for records. If your organization does not have formal protocols in place for responding to immigration enforcement investigations, do not delay in drafting and implementing protocols now.

We will continue to keep you up to date on immigration enforcement and regulatory developments as they occur.  In the meantime, please let us know if you have any questions or feedback.