Legal Framework Will Impact President-Elect Trump’s Immigration Policies17 Nov 2016
Due to his campaign rhetoric vowing to toughen immigration rules and enforcement, many immigrants and nonimmigrants are nervous about how the recent election of Donald J. Trump as the 45th President of the United States will impact their lives. The Murthy Law Firm understands how this can be a stressful time for people in nonimmigrant status as well as potential immigrants to this country. This article sheds light on the steps that President-elect Trump must take under the United States system of government. These could delay or indeed prevent him from implementing some or many of the policies he has referred to while seeking election.
Congressional Action Required to Change Immigration Law
It is important to understand that much of the existing immigration law framework is defined by statute, and, therefore, would require an act of Congress to change. The Immigration and Nationality Act of 1952 (INA) defines many of the requirements with which nonimmigrant and potential immigrants are familiar, such as the number of new cap-subject H1Bs that can be issued each year. Any fundamental changes to this or many other areas of immigration law would require a bill passed by Congress that is then signed into law by the President. The legislative process tends to be long and slow, and it seems unlikely that any such large-scale reforms will occur in the near future.
Agencies Issue Regulations to Interpret or Enforce Laws
Once a law is passed, it is often up to an administrative agency, such as the U.S. Department of Homeland Security (DHS), to create regulations that define how the statute will be administered and enforced. For instance, whereas the INA created the F-1 program for foreign national students, the optional practical training (OPT) program was created by regulation as a natural extension of the program authorized by Congress.
With few exceptions, in order for a regulation to go into effect, it must go through a formal rulemaking process. This can take several months or years. And, once a regulation is finalized, the only way to substantively modify or altogether eliminate it typically would be for either Congress to pass a law or for a new regulation to be drafted that again goes through the formal regulatory process.
Finalized Immigration Regulations
Some notable examples of immigration regulations that have been enacted in recent years include the 24-month STEM OPT rule and the rule allowing a qualifying H-4 spouse to apply for an employment authorization document (EAD). President-elect Trump certainly could direct the DHS to initiate the rulemaking process to modify or eliminate these or other immigration regulations. But, this would take a significant amount of time. Moreover, there has been no indication from the forthcoming administration that it wishes to take any action on these regulations.
Proposed Regulations for I-140 Beneficiaries – Impact Uncertain
Proposed regulations, such as the one containing the section on EADs for qualifying beneficiaries of approved I-140s, are still undergoing the formal rulemaking process. Technically, a new administration could review pending rules that are not final and prevent them from becoming final. But, again, President-elect Trump has not provided any indication that he wishes to take any action on such proposed rules.
The immigration policies that are most at risk are those that were enacted by President Obama via executive orders. Such orders are a way to make rules outside of Congress and outside of the aforementioned notice and comment rulemaking.
The most notable example of an immigration-related executive order was the creation of the Deferred Action for Childhood Arrivals (DACA) program, which provides a basis for certain undocumented immigrants who came to the United States as children to remain in the country and obtain work and travel authorization. There are presently hundreds of thousands of undocumented immigrants who are enrolled in the original DACA program. There is a possibility that President-elect Trump, after being inaugurated, will eliminate this program. If DACA is eliminated, the impact will be tremendous and create havoc among longtime undocumented residents who have grown up in the U.S., many of whom are currently completing their education, working in businesses, fighting in the U.S. military, or otherwise richly contributing to the United States.
An expanded version of DACA, along with a related program, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), were both blocked by the courts, and likely will never go into effect under a Trump Administration.
Building the Wall or Fence along the Southern Border
Trump seems determined to go ahead with his campaign promise to build a wall along the U.S.-Mexico border. The logistics and the costs involved in building such a barrier, and the ability to actually keep out those seeking to enter the U.S. from the southern border, has been the subject of various studies over the years. Only time will tell whether the wall will meet the objectives sought by Trump or whether more people will create tunnels under the wall or fence, or find other avenues to enter the U.S.
Ban on Muslims
One of the most controversial pledges made by President-elect Trump is a proposed “… total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on,” as included in a December 7, 2015 statement on then-candidate Trump’s website. This is a legitimate area of concern, as the INA provides the President with fairly wide discretion in preventing the “… entry of any aliens or of any class of aliens into the United States” whose presence “would be detrimental to the interests of the United States … .”
So, should Trump decide to follow through with this, it likely would be possible for him to implement a ban on Muslims “from any nation that has been compromised by terrorism,” as he clarified July 24, 2016 on NBC’s Meet the Press. Lawful permanent residents (“green card” holders) and U.S. citizens generally would not be affected. Similarly, nonimmigrants already in the United States would likely not be required to leave the U.S. But, those who travel abroad, or are already outside the U.S., especially whose travels include countries compromised by terrorism, could potentially be kept from entering the U.S.
If such a ban were to be enacted, it would very likely be challenged in the courts. It is certainly possible that the courts would strike such a ban based on religion as unconstitutional. But, it is also possible that the courts would either refuse to hear the case, based on a number of technical reasons, or determine that such a ban is permissible given that the foreign nationals who are outside of the United States lack many constitutional protections.
Although there is understandable anxiety and fear over the President-elect’s proposed immigration policies, U.S. immigration law itself can only be changed with the cooperation of Congress. Finalized regulations are also relatively safe, at least in the short term. Proposed regulations, on the other hand, could be halted by the new administration. Similarly, programs that are in place solely by executive order are at grave risk. We are likely to see changes, but how closely these will follow the candidate’s stance as he takes over as President, and what will be his highest priorities for implementation, remain to be seen. The Murthy Law Firm will continue to closely track any changes to immigration policy that are implemented and post the information on MurthyDotCom. Subscribe to the MurthyBulletin for updates on this and other immigration matters.
Copyright © 2016, MURTHY LAW FIRM. All Rights Reserved