By Rana Jazayerli, originally published in Global Coverage on 12/13/16.
Potential Impact of the Trump Administration on U.S. Immigration Laws
The issue of immigration played a significant role in the 2016 U.S. presidential election, with much of the dialogue directed at limiting the flow of immigrants to the U.S. During the campaign, candidate Trump proposed building a nearly 2,000-mile-long wall across the U.S. border with Mexico to keep out illegal immigrants, banning entry to the U.S. for all Muslims as well as people from countries which posed serious security risks including refugees from Syria, and terminating the DACA (Deferred Action on Childhood Arrivals) program implemented by President Obama. And now that Trump is the President-elect, the question is whether he will in fact move to implement these and other immigration proposals, and if so, what the impact will be on both individuals and U.S. businesses.
Some of the proposed immigration initiatives would require funding from Congress to enact, and others raise Constitutional issues that will likely delay and possibly even prevent enactment altogether if pursued by the new Administration. But one proposed initiative that the President-elect Trump could immediately enact upon becoming President would be the termination of the DACA program, which was enacted by President Obama through an Executive Order – not by congressional act. The DACA program granted childhood arrivals relief from the risk of deportation and allowed them to work legally. If terminated, more than 700,000 immigrants with long childhood ties to the United States would be placed back into limbo, and lose their ability to work, attend college (in some cases), and even hold driver’s licenses.
But some of the lesser publicized aspects of President Obama’s executive action on immigration included several initiatives to support U.S. high-skilled businesses and workers, as well as foreign-born entrepreneurs. It is unclear whether President-elect Trump will terminate these initiatives as well. And while he expressed a desire to implement immigration policies that will benefit the U.S. economy, he specifically proposed new restrictions on high-skilled immigration, which would include H-1B visas that many U.S. employers currently use to employ high-skilled workers in the STEM fields, citing the lack of available sufficient U.S. workers. If President-elect Trump pursues his proposed www.phillipslytle.com increased restrictions in an attempt to protect U.S. wages, he could instead harm many U.S. businesses that are already restricted in their hiring of qualified workers due to the limited number of H-1B visas currently available each year. The impact could be even more dramatic on the startup of new businesses. According to a 2016 National Foundation for American Policy study, “51 percent, or 44 of 87, of the country’s $1 billion startup companies had at least one immigrant founder.”
One immigration visa program that may benefit under the new Administration is the EB-5 immigrant investor visa program – a program designed to encourage foreign investment in U.S. businesses to grow the economy and create new jobs for U.S. workers. A significant part of the EB-5 visa program is up for renewal, at the same time that the industry and use of the visa has been under intense scrutiny and criticism by Congress and others following a string of high-profile cases of fraud and misuse of funds. While President-elect Trump has not expressed a public opinion on the EB-5 program, he is no stranger to it; his son-in-law Jared Kushner’s company used the program to finance, in part, its $200 million Trump Bay Street rental tower in Jersey City, which has a licensing deal with the Trump Organization to use the Trump name. As a real estate developer himself, it is unlikely that President-elect Trump will take a position against the EB-5 visa program which has been used to help fund many commercial real estate developments in New York City, though he, like many others, will likely call for increased integrity and oversight measures.
Rana Jazayerli is a partner in Phillips Lytle’s Washington, D.C. office. She provides counsel on all areas of U.S. Immigration law and has extensive experience in the EB-5 immigrant visa program. She can be reached at (202) 617-2711 or firstname.lastname@example.org.