Legal Briefing

US immigration reform in the wake of the 2016 presidential election

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Immigration | 18 November 2016

‘Our future will always be written in part by immigrants’ Hillary Clinton

Immigration was a prominent and highly charged topic of the 2016 presidential election. Hillary Clinton acknowledged that the US immigration system was broken and had promised to pass comprehensive reforms to strengthen the economy and to offer a path to full and equal citizenship to families that have been separated under the current legislation.  She promised to uphold President Obama’s executive actions, including DACA (Deferred Action for Childhood Arrivals) and DAPA (Deferred Action for Parents of Americans) that would grant relief from the threat of deportation to thousands of long-term residents in the US, mainly from Latin America.

In contrast, the President Elect Donald Trump promised to build a physical wall between the United States and Mexico, ban all Muslims from entering the country, cut all federal funding to sanctuary cities (cities where the authorities do not check an immigrant’s paperwork and do not prosecute people on the basis of being an undocumented immigrant) and he threatened to overturn President Obama’s proposed amnesty reforms.

On November 20, 2014, President Obama, in a televised address from the White House, announced a series of executive actions to suspend immigration enforcement for millions of illegal aliens.

These initiatives included:

  • Expanding the population eligible for the DACA programme to people of any current age who entered the United States before the age of 16 and have lived in the United States continuously since January 1, 2010, and extending the period of DACA and work authorisation from two years to three years.
  • Allowing parents of U.S. citizens and lawful permanent residents to request deferred action and employment authorization for three years, in a new Deferred Action for Parents of Americans and Lawful Permanent Residents programme, provided they have lived in the United States continuously since January 1, 2010 and pass required background checks.

President Obama’s executive actions were presented as a response to Congress having been unable in recent years to agree on a general legislative overhaul of US immigration policy.

On June 23, 2016, the US Supreme Court announced that it was evenly divided in United States v Texas (579 _ US (2016)), the case challenging the expansion of DACA and the implementation of DAPA. President Obama lamented the Court’s decision:

‘For more than two decades now our immigration system, everybody acknowledges, has been broken,’ Obama said. ‘And the fact that the Supreme Court wasn’t able to issue a decision today doesn’t just set the system back even further, it takes us further from the country that we aspire to become.’

On October 3, 2016, the US Supreme Court denied the Obama administration’s request for a rehearing in the United States v Texas case. The decision has a disappointing impact for the millions of would-be eligible immigrants whose lives remain in limbo after the Court’s ruling.

Twenty five years have passed since the last major amnesty and the unauthorised population has grown to 11 million.  Obama’s executive actions would allow potentially millions of immigrants to defer deportation and to apply for authorisation to work.  On the campaign trail, President Elect Trump stated that he would immediately terminate the President’s two executive amnesties and deport all undocumented migrants living in the United States.

Most undocumented workers have been in the US for a long time; 66% for 10 years or more. Uprooting these workers would cause severe economic and social disruption as they make a large contribution to the US economy, working in the agricultural, hospitality, construction, and other industries. It would, therefore, be in the best interests of the US to develop a process for them to earn legal status.

The Implications for Corporate Immigration
H-1B visas

For many years, business leaders have expressed the need to increase the H-1B cap to allow them to hire qualified workers. The H-1B is the most popular work visa and is the most heavily regulated non-immigrant classification.  It is utilised by U.S. businesses to employ foreign workers in specialty occupations that require theoretical or technical expertise in a specialised field, such as scientists, engineers, or computer programmers.

It is widely acknowledged that highly educated H-1B foreign professionals, many of whom are educated in the US, bolster the US workforce and propel the economy forward. But the annual cap of 85,000 on H-1B visas (65,000 for first time applicants and 20,000 for foreign students from US universities) means that many employers are unable to access this highly educated pool of professionals.

It is unclear whether the Trump administration will introduce legislation to increase H-1B visas or if it will adopt a protectionist approach and prioritize jobs for US workers. This could include, inter alia, increasing the minimum prevailing wage for the role, testing the labour market, or other restrictions making it even more difficult for employers to hire these highly qualified workers.

The Foundation for American Policy shows that immigrants started more than half of the current US-based startups valued at $1bn or more.  These 44 companies, the study says, are collectively valued at $168bn and create an average of 760 jobs per company in the US. The study also estimates that immigrants make up over 70% of key management or product development positions at these companies.

Technology leaders, including Mark Zuckerberg and Bill Gates, have called for increasing the number of H-1B visas that let skilled foreign workers stay in the country. They argue that immigration greatly benefits the technology industry and that it is difficult for companies to hire foreign-born workers and for immigrant entrepreneurs to start businesses, due to visa constraints.

The North American Free Trade Agreement (NAFTA) – TN visas for Mexican and Canadian Nationals

Under NAFTA, which has been in effect since 1994, nationals of Mexico and Canada may obtain ‘TN’ status in a list of specified professions.  On his campaign trail, President Elect Trump said that he intended to repeal NAFTA.

Although TN status is similar to H-1B status in that it is available to professionals entering the United States to work for a specified employer at a professional level, it is not subject to an annual cap.  In addition, TN status is not subject to a maximum time limit.

Although the President Elect did not address the issue of TN classification, a renegotiation of the treaty could affect Canadian and Mexican employees in this status and restrict the movement of qualified professionals from these countries to the US.

The History of US Immigration

The United States experienced major waves of immigration during the colonial era, the first part of the 19th century and from the 1880s to 1920. Most immigrants came to America seeking greater economic opportunity, while some, such as the Pilgrims in the early 1600s, arrived in search of religious freedom. From the 17th to 19th centuries, hundreds of thousands of African slaves were sent to the United States against their will.  Prior to 1882, immigration was regulated by individual states.  The first significant federal legislation restricting immigration was the 1882 Chinese Exclusion Act. The country’s first federal immigration station, Ellis Island was opened in 1892. New immigration laws enacted in 1965 ended the quota system that favoured European immigrants, and led to the majority of the country’s immigrants coming from Asia and Latin America.

In the 1980s and 1990s immigrants continued to travel to the United States, mostly by land routes through Canada and Mexico. The Immigration Reform Act in 1986 attempted to address the issue of illegal immigration by providing better enforcement of immigration policies and creating more channels to seek legal immigration. The act included two amnesty programmes for unauthorized aliens, and collectively granted amnesty to more than three million illegal aliens. The 1990 Immigration Act modified and expanded the 1965 legislation, increasing the total level of immigration to 700,000. The law also provided for the admission of immigrants from ‘under-represented’ countries to increase the diversity of the immigrant flow.

In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act, which addressed border enforcement and the use of social programmes by immigrants.

In the wake of the 9/11 terrorist attacks, the Homeland Security Act of 2002 created the Department of Homeland Security (DHS), which took over many immigration services and enforcement functions formerly performed by the Immigration and Naturalization Service (INS). With minor modifications, the policies put into place by the Immigration and Naturalization Act 1965 are the same policies that govern US immigration today. Non-citizens currently enter the United States lawfully in one of two ways, either by receiving temporary (non-immigrant) admission or permanent (immigrant) admission.

The number of foreign individuals in the United States has increased in recent years. According to the Pew Research Center, it rose from 39.9 million in 2010 to 42.2 million in 2014 and up to 43.3 million in 2015.

An examination of the figures from the DHS, however, indicates that the increase is not due to a rise in the number of lawful permanent residents — a number which fluctuated between 460,000 and 484,000 from 2010 to 2014. It is likely that the net growth in the total number of foreign-born individuals in the census data is related to an increase in some of the ‘non-immigrant’ categories.

A report released in September 2016 by economists Pia Orrenius and Madeline Zavodny has concluded that net migration from Mexico – the single biggest source of both unauthorised and legal immigrants to the United States – has been ‘near zero or even negative’ since the last recession.  This means that the number of new legal and unauthorised migrants is equal to or less than the number of migrants returning home since 2007.

Conclusion

The United States is a nation of immigrants who have brought their talent and innovation to the country. So far this year, six Americans have been awarded the Nobel Prize in the areas of chemistry, physics and economics – each of whom is an immigrant. Two of these winners shared their views on the challenges of emigrating to the United States and the importance of immigration to the American scientific establishment. Duncan Haldane, the English Princeton University researcher who won the prize for physics, described the immigration process as a ‘…bureaucratic nightmare for many people.’  The winner for Chemistry, Sir J. Fraser Stoddart, said ‘I think the resounding message that should go out all around the world is that science is global.’ Born in Scotland, he credited ‘American openness with bringing top scientists to the country…’ and added that ‘the American scientific establishment will only remain strong as long as we don’t enter an era where we turn our back on immigration and added that the United States should be welcoming people from all over the world, including the Middle East.’

Despite the immigration challenges, scientists, artists and professionals in every field continue to come to the United States and restricting or limiting the non-immigrant visa opportunities for these highly skilled workers would severely damage the US economy and its competiveness overseas.

Current US immigration laws do not reflect the demographic and economic reality of the 21st century.  The failure to deal with the immigration system in a comprehensive manner has resulted in a system that is unmanageable with too few legal channels to enter the US and an increasing foreign population living outside of the law.   America’s economy depends on migrant labour.  The H-1B cap hinders US companies’ competiveness and benefits competitors abroad.  The need for change is becoming increasingly urgent.

President Barack Obama’s controversial executive actions on immigration would have provided expanded deportation relief to millions.  The question on how to deal with the 11 million illegal aliens currently residing in the US will fall to the next administration and to Congress.  Even though less new immigrants are arriving in the US than in the past, the President Elect may well build his wall on the Mexican border. Since his election, Mr Trump has stated that he will start the process of deporting up to three million illegal aliens in his first 100 days in office.

To maintain a dynamic economy, the US needs to embrace immigrant entrepreneurs, scientists, doctors, engineers, and researchers, etc.  The US political climate, with its partisan fall outs, congressional inaction and bureaucratic obstacles has created a quagmire that has led to hundreds of thousands of highly skilled workers leaving the US and returning to their home countries.

The new administration may be able to immediately eliminate certain immigration programmes and others will require time to enact and will have to go through Congress before legislation is passed. It is hoped that President Trump’s administration will take a pragmatic approach and only deport undocumented immigrants with serious criminal convictions rather than trying to deport up to 11 million people; and that it will maintain America’s competitiveness by enacting rules that encourage the best and brightest in the world to stay in the US to cultivate entrepreneurship and job creation.

A nation divided against itself cannot stand.’ Abraham Lincoln