During his presidential the campaign, Donald Trump, some argue, has come to represent anti-immigration spirit and exclusive (“America for Americans”) type of candidate. While we are not here to argue public perception, now that the election race is over, we felt obliged to make a statement regarding how Trump’s election can affect green card seekers and immigrants.
Immigrant Fears Appear Exaggerated
We feel that the panic, fear and anxiety about the fate of current and future immigrants, both legal and illegal, is largely overexaggerated. While making statements during the political campaign may be easy and inexpensive, implementing some of the promises is a different matter. With the completion of election, American laws are still in place, bill of rights remains uncancelled, the core of the legal system around due process remains intact and the system of checks and balances continues to exist. And because of this, in our opinion, most radical – and scary – threats and predictions against immigrant rights will likely not go too far.
It is difficult to make predictions, especially about the future. And it would be too presumptive for us to guarantee what Trump administration will do or not do around its immigration policies. That said, we can look at Trump’s proposed set of policies he intends to implement during his first 100 days and analyze them. The actual document can be found here Donald Trump Contract. We also refer to some analytical opinions of Mike "Mish" Shedlock’s. For the purposes of this exercise, we will focus on immigration issues only, in no particular order, and ignore everything else. Our review of the proposals that have been made public by the Trump administration leads us to believe that Trump’s stance on the immigration will remain largely the same as Obama, Bush or Clinton’s used to be.
Trump vows to cancel every unconstitutional executive action, memorandum and order issued by President Obama. This statement is broad and vague enough, and it may include executive orders and regulations around DREAM (Development, Relief, and Education for Alien Minors Act), DAPA (Deferred Action for Parents of Americans and Lawful Permanent Residents) and DACA (Deferred Action for Childhood Arrivals).
DREAM affects approximately 1.8 million immigrants who are already in the U.S., undocumented and illegal, under 31 and was brought into the country as children. DAPA protects from deportation and provides work authorization for approximately 3.6 million illegal immigrants, who are parents of U.S. citizens or green card holders. DACA permits certain undocumented and illegal immigrants who entered the country before they reached the age of 16 to get two-year work permit and exemption from deportation.
First of all, these programs affect only existing illegal immigrants who has been in illegal status for years; they do not affect new or pending green card applicants. Second, we do not know the extent these programs may be struck down or modified by Trump. Third, these executive orders, as of November 2016, are largely moot: Supreme Court ruled in June 2016 that these programs are to remain blocked while lower courts continue to evaluate merits of these programs. In short, canceling these programs will have no considerable effect on the existing immigration climate.
Trump vows to cancel all federal funding to sanctuary cities. Sanctuary cities are cities in U.S. (and Canada) that choose not to prosecute illegal immigrants either through passage of laws (which are in conflict with Federal immigration laws) or refusal to enforce locally Federal immigration regulations. Examples of such cities include New York, NY, Los Angeles, CA, Washington, DC, Philadelphia, PA, San Francisco, CA among others, which include 30+ names.
The notion of sanctuary city is an informal one and it is not spelled out in U.S. laws. There are no legal tests to classify cities as such. Therefore, this statement vowing to cut federal funding to such cities is largely meaningless because, according to Mish Shedlock, it will require an act of Congress or a new law to disallow federal funding of such cities. Granted after the election, Republicans control both chambers of Congress and perhaps such a law may indeed pass. However, it will take time. The law needs to be written, reviewed and in, some cases, public need to opine on it. It may take months or possibly years to pass such a law. Separately, it only affects existing illegal immigrants and does not affect new or pending green card holders.
Removal of Illegal Immigrants
The exact language reads, “begin removing the more than two million criminal illegal immigrants from the country and cancel visas to foreign countries that won’t take them back.” This statement does not make sense because technically all immigrants in the U.S. illegally are subject to removing proceedings in one form or another. And the U.S. government spends billions on these efforts every year. See The US Government Can't Enforce Immigration Laws by Detaining and Monitoring Illegal Immigrants. So this is nothing really new.
This statement, however, may refer specifically to those immigrants, who are illegal in the United States, but also serve prison terms in U.S. jails. Then the administration will deport convicted criminals to their home countries and force them to serve their prison terms there. And if their home countries fail to take them back, the Trump administration is threatening visa bans for citizens of those countries. This appears a bit harsh for those citizens, but then again, this new policy will not affect current illegal immigrants significantly (assuming you don’t have criminal records and convictions) nor will it affect the intended immigrants and pending green card applicants.
Suspend Immigration from Terror-Prone Regions
The exact language reads, “suspend immigration from terror-prone regions where vetting cannot safely occur. All vetting of people coming into our country will be considered ‘extreme vetting.’” It appears there are two statements here. One has to do with immigration from terror-prone regions until proper vetting can take place. Although the language is vague, the regions targeted are most likely North Africa, Middle East and Central Asia. There are only limited number of immigration paths to green card: see What is a Green Card and The Green Card Definition: Complete Test of Your Eligibility.
It is our opinion however that family or work-related green card applications are still going to be accepted by the USCIS and reviewed. We do not expect this to come to a complete halt because these applications require sponsorship of a U.S. citizen, green card holder or a corporation. And freezing such immigration applications would directly affect the rights of Americans. That said, security and background checks for folks coming from terror-prone regions will be increased substantially (see below Restoring National Security Act). This will probably add to the green card processing times. That said, this is not unexpected. We wrote about this potential increase in scrutiny and screening nearly a year ago: More Rigorous Review of Fiance Visa Application Expected as New Details Emerge in Investigation of San Bernardino Shooters. In fact, we expected this to happen a while ago and independent of a new presidential administration because previous failures in the screening process produced such dramatic terrorist attacks.
Where we do see significant reduction in approvals is refugee and asylum green cards. The federal government designates annually which regions globally can be classified as refugee areas. And it is within the government authority to designate the terror-prone regions as non-refugee areas and accept no refugees from those regions – as mentioned above most likely, North Africa, Middle East and Central Asia. However, this can or could be done regardless of the Trump administration and frankly such regional designations change every 12 months anyway. This is not new nor does it change anything from the existing system.
The second point that the Trump 100 day contract makes is “vetting will become extreme vetting.” And as we noted above, because of the vetting failures in the past, the U.S. was attacked by terrorists. The protocols for vetting, background checks and interviews may become more rigorous. It may take longer. But immigrants with proper and peaceful backgrounds will still become green card holders, while opportunistic criminals and/or terrorists likely be caught in the process.
End Illegal Immigration Act
This new proposed piece of legislation will fund the construction of the wall with Mexico; establishes a mandatory 2-year prison term for illegal re-entry into the U.S. after deportation and a 5-year term for those who had felony or multiple misdemeanor convictions or multiple deportations; reforms visa rules to increase penalties for overstaying visas; ensures Americans are treated with priority when it comes to filling jobs.
This End Illegal Immigration Act will require a Congressional review and passage. It will take time. This also appears to be one of a very few immigration reform efforts over the past 20 years. So perhaps, the new administration may take its time to overhaul the U.S. immigration system much more radically than introducing a few items designed to address most burning problems around illegal immigration. This again will likely take time.
This is our opinion that the construction of the wall will not work primarily because it is expensive costing anywhere between $10 and $30 billion. Trump campaign promises Mexico will pay for it; and Mexico already said it won’t do this. Such a wall would also face massive environmental (water management between U.S. and Mexico), engineering (how do you build 50 ft tall and 10 ft below ground wall over 2000 miles in length) and sheer execution challenges (how long will it take even with 1,000 people working). It also does not make sense because a large portion of the border is already fenced. So the plan is to build the second or a higher fence? We believe that at full scale this wall project will never be executed. Perhaps, some wall may be constructed just to appease Trump’s critics but at much smaller scale.
Prison terms for multiple immigration law violators is certainly an escalation, designed to create strong disincentives for serial illegal immigrant violators. This, however, appears to be in conflict with the proposal we discussed above about illegal immigrant felons, serving terms in U.S. jails. How is this going to work? You send felons to serve their jail term in their home countries but you also jail serial violators of immigration laws? Net effect may include significant increase in prison population, which has to be borne by the U.S. tax payers. This in turn will negate the positive effects of the reduced illegal immigration. Something does not make sense here – more details needed to fully understand the proposal and now these details are unavailable.
Penalties for overstaying visas will increase; that said such penalties are pretty tough already. See Green Card Review Is Strict; It is Self-Reinforcing Through Lack of Transparency into Visa Overstay Statistics. Such penalties include 5-year, 10-year and lifelong bans from the U.S. Maybe the prison terms will be that last straw to make such disincentives more effective? We shall wait and see.
Ensuring that Americans are treated with priority when it comes to filling positions will probably have some effect on H1-B program and green card through employment. (See More Expensive Work Visas Unlikely To Slow H1B and Green Card Applications; Flawed Lottery System Will.) We still don't have details what these changes may be. We suspect it will affect the labor certification process, which may require more rigorous job advertisement process, update to the way these jobs are advertised for (e.g., in some instances USCIS accepts newspaper advertisement as acceptable form of advertisement evidence to confirm that no Americans responded to the position notice) and, perhaps, a requirement that the position to be filled by a foreigner have a higher-than-market compensation rate. None of these details, we understand, have been made public yet. And, in our opinion, these both H1B-B and green card through employment programs are in dire need of update.
In short, however, all these innovations will not affect law-abiding immigrants. More details about this bill need to be reviewed before making any final determination. From the surface of it, it does not even appear to be anti-immigrant.
Restoring National Security Act
This new piece of legislature proposes several changes to the military and security infrastructure investments; more importantly it establishes new screening procedures for immigration to ensure those admitted to the U.S. can support and embrace its people and values.
No details about the screening and vetting process are available yet. As mentioned above, the factors for increased scrutiny have been in play for a while now, and to us it was a matter of time before such increases are implemented. It makes logical sense to update vetting procedures as technology evolves.
One can argue that it is unfair to force people to embrace U.S. values. The counter argument to that is if you are unwilling to do so, why come here in the first place? The question will be to what degree this will be required and who will be the final arbiter of whether the immigrant is supportive of the U.S. values. It is our opinion that “embracing of people and values” will be limited to not working to disrupt American security and institutions; we don’t believe this will lead to forcing people to abandon their home countries’ religions, traditions or customs in exchange for a green card.
We still don’t have full information about the specific proposals and plans of the newly elected Trump administration around immigration. However, the details that have emerged largely confirm that the plans don’t envision an attack on the immigrant community in the U.S. The new proposals establish harsher punishment for repeat offenders and immigrant-felons. The new initiatives also establish more rigorous and comprehensive vetting or screening of green card applicants, which is not unexpected given terrorism threat and evolving technology. More details need to become public, but as of now, most Trump proposed immigration policies are largely the same as the policies under Obama, Bush or Clinton… The U.S. immigration system is still in dire need of reform.