Trump Immigration Executive Orders in January 2017: Travel Ban & Marriage Green Card, Employment Green Card (EB1 & EB2) and H1B
I have reviewed the original texts of the Trump immigration executive orders in January 2017 and presidential memorandums. The first (1) deals with the border with Mexico, the second (2) deals with the illegal immigrants within the United States (away from the border) and the third (3) deals with the refugees and the travel ban. The analysis of each is provided below. The video-analysis is also available below for your viewing pleasure.
In my opinion, the vast majority of directives in these documents are a mere regurgitation of existing immigration laws and reiteration of enforcement priorities of such existing immigration laws. I wrote about this in the post Donald Trump New President Elect: Implications for Green Cards and Immigration and thus far my predictions have been spot on: No radical changes to the United States immigration system in the foreseeable future. We shall wait and see how the following weeks and months shake out. Thus far, however, we have seen nothing radical. Furthermore, these presidential decrees read like law and order enforcement policies that Trump declared his presidency was going to be about.
'Nothing radical', on the other hand, is not what is being advertised, it appears, by the vast majority of media outlets. I see a lot of speculation. Not a lot of details in the reporting. And tons of fear mongering. In the nation, where nearly 40 million people can be called, or are related to, immigrants, perhaps such fear mongering does help with newspaper sales. Let us review what the executive orders and presidential memorandum related to immigration actually contain.
(1) Trump Executive Order on the Border With Mexico - Key Points
Using the language from the order directly, the 'purpose of this order is to direct executive departments and agencies to deploy all lawful means to secure the Nation's southern border, to prevent further illegal immigration into the United States, and to repatriate illegal aliens swiftly, consistently, and humanely.'
Here are the keywords that jump out at me: lawful means, swiftly, consistently and humanely. Of course, this could be political posturing by the White House. However, the last time we checked the U.S. Constitution, the system of checks and balances as well as the legal system build on the principle of following procedures are still in place.
Key objectives of this order
Here is what this order mandates:
All in all, however, the vast majority of these initiatives is not new. Let us take a look.
Trump's wall is not Trump's. The wall along the southern border of the U.S. was supposed to be finished and constructed in accordance to the 2006 Secure Fence Act. Hilary Clinton and Barak Obama voted for this Act. According to Wikipedia, by 2009, 613 miles (out of 700 spelled in the law) of the fence was completed. Since then, some legislators attempted to finish the wall and built it along the 353 remaining miles of the border.
A couple of things jump at me. It reads like the original 2006 law was never fully implemented (83 miles of the fence was not built). The current executive action focuses on planning and designing the wall, and writing a report about the potential wall. Building the wall will only occurs if the Congress gives money for it. The bottom line: The wall is not new and not immediately actionable.
Detentions of Illegal Immigrants
The 1996 IIRIRA (which passed under and signed into law by then President Bill Clinton) legitimized 3, 10 and lifetime bans for being illegally in the U.S. (both illegally entering and staying or legally entering and overstaying) and deportation for immigrants even for minor criminal offences. Previously, according to Wikipedia, deportation could only be triggered if the crime would lead to at least 5 years in jail.
The IIRIRA also legitimized lengthy jail detention before alien's case can be heard by the immigration board. In detention, the question about how can illegal immigrant become legal can only be resolved through asylum application. See green card definition for other examples.
Last but not last, the IIRIRA established protocols for the federal government to enter agreements with state and local authorities to delegate enforcement of immigration laws to State and local authorities.
So, again the detention for immigration offences is not a new practice. Technically unlawful practice of 'catching and releasing' immigrants until their hearing is no longer be tolerated.
The protocols for asylum applications have been established by the Refugee Act of 1980 according to the American Immigration Council. The executive order does not change them. In fact, it appears it urges to speed up the review of the asylum applications so that the detained asylum seekers do not have to spend a lot of time in detention.
New Initiatives of the Executive Order
Here are the things that appear new. New 5,000 border patrol agents, if the funds are to be available. A few thoughts. First, I don't have a lot of insight into whether the funds will be available. The current Federal budget has been approved through September 30, 2017 and most likely does not have funds allocated to these new 5,000 hires, but, perhaps, the emergency funding may become available. Second, these new hires will constitute a 25% increase to the existing 21,000 border patrol agents. It is a meaningful increase. This, however, is a smaller increase than the increase that took place during the President Obama administration, which raised border patrol headcount from 10,000 in 2004 to 20,000 by 2011. Thus, it looks like the hiring more border agents is new. But also it is not new.
Another new item is the foreign aid to the Government of Mexico report. This is a report. Not a course of action. We shall see what the consequence of the report will be. I suspect this foreign aid report may be used to justify making Mexico pay for the wall. Or, cutting the foreign aid to the Government of Mexico going forward until the border is fully secured. We shall wait and see.
Another new item appears to be a demand that the crimes committed near the border with Mexico be given a priority by Federal agencies. I would like to emphasize that these cases will not be treated differently; they will be treated with priority (vs. I guess, first come first serve principal that exists now). This is absolutely inconsequential to existing immigrant community.
Last but not least, the executive order establishes a new monthly public report to highlight the illegal immigrant statistics to the public. Again, from the prosecutorial perspective this does not affects the existing immigrant community. Overall, the execute order related to the border with Mexico reiterates existing immigration regulation and has no direct effect on green card through marriage, H1B, EB1, EB2 or other employment green cards.
(2) Trump Executive Order on Illegal Immigrants within the United States - Key Points
The purpose of the executive action is to ensure the interior enforcement of the immigration laws against all removable aliens.
Key policy goals:
Here is what this order mandates:
This executive action does contain a few innovations but in my assessment they are relatively benign for the existing immigrant community or prospective immigrants if they do not have criminal background.
Deportations are being prioritized to criminals. However, the scope and definition of the 'crime' for the purposes of deportation has been expanded. It is unclear how non-criminals illegal or undocumented immigrants will be treated if they reside not in close proximity to Mexican border.
However, the concept of deportation of criminals have been in place for decades; at least since the President Bill Clinton and the passage of IIRIRA in 1996. That same IIRIRA bill established the practice of agreement between the Federal and State/local enforcement agencies to delegate the enforcement of immigration laws to State and local authorities.
Fines and Penalties
I am not entirely sure how penalties and fines can be collected from individuals which are about to be deported. I would say it may be hard to collect. However, this clause may focus more on the entry bans as penalties for violating immigration laws. Perhaps, assessment is being valued more than the actual 'collection.'
A 10,000 head count increase in the USICE officers is new and significant. This is nearly 50% increase from the old head count. Again, it feels to be designed to more effectively enforce immigration laws.
Stats of Crimes by Aliens
Public reporting of criminal statistics by aliens is new and probably positive. What remains a mystery to me is how reliable this statistic is going to be: Unless the perpetrator is caught and his immigration status is ascertained, you can not really assign the crime to an alien. Furthermore, it will need to be looked at in context of alien crimes vs. U.S. citizen/lawful permanent resident vs. unsolved. I am still looking for a source, but I recall reading somewhere that immigrants tend to commit less crimes than U.S. citizens/lawful permanent residents. Once I have that references, I will publish it here.
Priority Enforcement Program vs. Secure Community Program
Both Priority Enforcement Program (PEP) and Secure Community programs were both in place since 2014, which is the legacy of the President Obama's administration. The simplistic distinction between the two programs is that the PEP did not mandate for the immigration enforcement officers to take over arrested suspects by Federal/state/local authorities (suspect is obviously an illegal immigrant). The officers could evaluate the suspect and decide to let him be released, based on the severity of the crime he or she being accused of. The Secure Community program pretty much forces the immigration enforcement officer to take over custody of the suspect and initiate deportation proceedings if there is evidence that he is an illegal alien.
Cross-Border Criminal Organizations
Creation of a program to combat cross-border criminal activity, including crimes committed by illegal immigrants, is probably good news. I suspect this will be targeting activities of Mexico based drug cartels.
The Office to Assist Victims of the Immigrant Crimes
The creation of the office to assist victims of the immigrant crimes appears to be a positive initiative. Nothing in this is bad for existing or prospective immigrants.
Last but not least, the creation of the quarterly report on the immigration status of aliens in the prisons appears to shed light on the extent to which the government spends resources on criminals in the U.S. who really have no right to be in the country in the first place. All the above mentioned initiatives in the executive order appear to be absolutely benign for the purposes of legal and aspiring immigrants. I expect it to not affect the green card through marriage applicants, H1B visa holders and employment green card applicants.
Big Concern and Potential For Abuse of Power Against Aliens
What really gives me a pause with respect to this executive order is the potential lack of privacy for non-U.S. citizens and non-lawful permanent residents. This executive order pretty much mandates non-enforcement of privacy for aliens.
Another item of concern is the authority that this executive order gives to any immigration officer to assess whether an alien is a public safety or national security threat. Given that other items in this executive and other executive order pretty much deputize any cop - including a regular traffic officer - to make such a determination about any illegal immigrant or an alien, it feels like a step too far. It is too open ended. To unlimiting. And if you multiply that by the lack of privacy rights, to me it feels it will create a fertile ground for abuse.
(3) Trump Executive Order on Refugees and Terrorist Entrants - Key Points
The purpose of this order is to review the temporary non-immigrant and immigrant visa issuing protocols, including the refugee program, to ensure that no entrants have terrorist connections or criminal intents. The order explicitly targets or focuses on hostile attitudes towards the United States by countries or individuals, acts of bigotry or hatred, especially those of violence against women, religious prosecution and violence against Americans of any race, gender or sexual orientation.
Here is what the order mandates:
The key takeaways from this executive action is that we are going to have a new security regime related to visitors and immigrants to the United States. This will involve more information collection (including information from governments, whose nationals are visiting or immigrating to the U.S.), new information gathering forms, closer and more rigorous interview protocols and new questions designed to vet the applicants for their criminal and terrorist intent.
It appears that all of these initiatives are motivated by enhanced security. While we are learning specifics just now, the intent to increase security and vetting measures related to the U.S. temporary visitors and aspiring permanent residents were declared by the Trump presidential campaign months ago. We wrote about it shortly after the election in November 2016: Donald Trump New President Elect: Implications for Green Cards and Immigration.
I think the reason behind these enhanced security measures is the events that transpired in San Bernardino where shooters killed 14 and wounded 22 people. The perpetrators were married, but the wife originally came to the U.S. through k-1 fiance visa and is believed to have been responsible for radicalizing her spouse. (See How to immigrate to USA and Marriage Between a U.S. Citizen and a Foreigner for more details.) The argument goes: Had the fiance visa application process been more rigorous, she would not have been granted the visa.
The Travel Ban
More importantly, none of the proposed initiatives (except for one, see next paragraph) violate the set of laws that constitutes the existing immigration regime in the United States. For example, suspension of visitors from Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen is within the authority of the President as it was defined by the Immigration and Nationality Act of 1965 and amended several times. The argument here, of course, is related to the fact that these countries are on the watch list for terrorism. I wrote about the possibility of that happening here. However, let us not lose the sight of the forest for the trees: The travel ban is a temporary measure and within 90 days, hopefully after the new screening and security protocols are in place, it will be lifted. I do not view this as a major anti-immigrant move.
The Travel Ban Overreach
I do have one big reservation, however, about this travel ban. I believe it is a violation of existing immigration regime. It appears that the visit ban from these countries also included green card holders. And several green card holders have been detained. The news media have been covering these events widely. I believe this is a mistake by the Trump administration, and it will have legal ramifications for the administration. I understand one or more law suits have already been filed against the Federal government for such detentions of the green card holders. Perhaps, within the next few days, a revision to the executive order will be issued. As of now, that is the only thing that stands out as being outside of the legally allowable.
The New Security Protocols
âThe new screening standards in themselves are nothing new. Recall that after 9/11, all visa and green card application processes changed. And over the years, the procedures have been revised several times to streamline the protocols and make the processes more effective. For example, introduction of biometrics to track immigrants and visitors. Another example, introduction of the Global Entry program or TSA Pre. In short, the security protocols are bound to change over time as technology evolves. This time around, the change is driven not by technology but by the politics of enforcing law and order, which Trump declared early in his campaign he envisioned his presidency to be. My sense is that all the folks who are law-abiding alien visitors or immigrants and who have no ties to crime or terrorism will not be significantly affected by the new procedures. Some inconvenience is possible, but I do not envision this to be a deal breaker: You want to come to America, you must follow protocols. The choice is yours.
Refugee Program Suspension
Suspension of the refugee program for 120 days does not appear to be something extraordinary either. Not to me at least. And it should not affect refugee applicants significantly. First of all, the U.S. President enjoys a long-reaching authority when it comes to refugees. Annually, the President unilaterally decides which regions of the world are designated as areas of interest (i.e., from where people can apply to be considered refugees). Every year the President decides how many refugees can be admitted. That does include the number of zero. Making it 50,000 for 2017 is within the President's discretion, according to the Immigration and Nationality Act. For example, according to this, 50,000 was the amount of refugees the U.S. admitted in 2004 and 2005, while in 2002 and 2003 that number was around 25,000 and in 2011 and 2012 that number was between 50,000 and 60,000.
âSecond, and more important, becoming a green card holder through a refugee takes years. You start by applying to be qualified as a refugee while outside of the U.S. This may take 12 months. Then, you travel to the U.S. and if admitted you must live in the U.S. for at least 12 months before applying for a green card. That is protocol. And then there is this pesky limit on refugees per year. And there is another limit for each region of the world. (See priority date for a more detailed explanation.)
âWhen you apply for the refugee green card, you get in line. If there are many refugees in line from your region, you may have to wait one year or more before your name comes up. And then the actual processing time by the USCIS, which is, in best case, 6 months. So, the fastest refugee green card timeline can last as long as three years. But more often than not, it is a 5-7-year process. So, 120 days, over which the refugee program is suspended is not long by any stretch of the imagination.
Biometric Entry-Exit Tracking
New biometric entry-exit tracking system is way overdue to be implemented. I wrote about this here Green Card Review Is Strict; It is Self-Reinforcing Through Lack of Transparency into Visa Overstay Statistics. The U.S. is probably the only country in the world that does not track departures. Normally, each country tracks entrances and departures of visitors. The U.S. tracks only entrances. Perhaps, once tracking of entrances and exits is implemented, the situation with the illegal immigration can be more closely monitored.
Requiring all visa applicant to undergo an in-person interview also does not appear to be out of normal. In many cases this is being done regardless. Depending on jurisdiction where you are applying from, you may be granted an exception from the interview if you are younger than 14 or older than 80. Otherwise, interview is a standard protocol for any visitor visa.
Visa reciprocity is also considered a normal practice, in my opinion. Countries tend to match each other in visa durations and fees and use this as a mechanism to ease the visa regime to attract more tourists. Now, it appears, the U.S. is going to review visa reciprocity with other countries.
The reporting requirements on the refugee program costs. Nothing in this will affect current or prospective immigrants. One question I would like to raise early is whether the analysis of the refugee program costs will lead to potential revision of the program by claiming it is too expensive? I do not know the response. We shall wait and see.
Effects on Green Card Through Marriage, Employment Green Card and H1B Applicants
In conclusion, other than those folks from Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen, the current executive order does not affect the overall immigration system to the U.S. that much. To give a bit of a perspective, consider the following statistics. In 2015, the U.S. issued 72,162 non-immigrant visas to visitors from these countries. And the U.S. also issued 10.9 million non-immigrant visas in total. Visitors from Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen constituted 0.66% of all visitors requiring visa to the U.S. If you take into consideration that the U.S. welcomed 77.5 million visitors in 2015, the number of visitors from these countries becomes 0.09%. Merely a margin of error.
That said, the new screening, vetting and background check protocols will have an effect on the green card application process: This will affect the green card through marriage, employment green card and H1B applicants. We do not have all the details of the process just yet. It will most likely take longer. And the process will involve more thorough diligence on the applicant.
For example, green card marriage interview will also include criminal background and terror suspect questions. But we expect other green card through marriage process steps should remain the same or similar. Each marriage green card application will have to have an in-person immigration appointment and go through the green card interview experience, which some report is less than pleasant experience. The marriage based green card without interview will become a matter of history. We expect that applications to remove conditions on green card (like I-751) will not be possible without interview - also a matter of history (see I-751 interview). We expect the green card through marriage timeline will not change that much. This green card category is treated with priority by the USCIS. Last but not least, proving you are in bona fide marriage will be more important than ever.
âSimilar things I expect to happen to employment green cards (such as EB1, EB2, EB3, etc.). We also have the same expectations around H1B program. We shall wait and see about what will transpire in the coming months. In the meantime, the process is expected to remain the same. More rigor will be devoted to analyzing each applicant background. Criminal backgrounds and hints to association with criminal or terrorists' organizations will be grounds for automatic dismissal of the application. Timing will probably also stay very similar. And no application or petition will be approved without an in-person interview.
But these new security and vetting protocols will affect everyone desiring to visit or immigrate to the United States. I do not know if that will make us safer. But I do know, if you do not want to be bothered by the security measures, you will always have a choice to NOT visit the U.S.