March 17, 2017
IMMIGRATION: TRUMP ACTS, WHAT IS NEXT?
As expected, the Trump Administration has turned quickly to address immigration issues. He has issued four Executive Orders: “Enhancing Public Safety in the Interior of the United States,” (January 25, 2017); “Border Security and Immigration Enforcement Improvements,” (January 25, 2017); “Protecting the Nation From Foreign Terrorist Entry Into the United States,” (January 27, 2017); and a March 6, 2017 Executive Order replacing the January 27 order on foreign terrorist entry.
The Border Security order declares it the policy of the Executive Branch to build a wall on the US southern border; to detain undocumented aliens apprehended on suspicion of violating Federal or state law until further proceedings in their cases (i.e. the end of “catch-and-release”); expedite removal of those unlawfully in the US, after any criminal or civil sanctions have been imposed; and expedite the resolution of claims of eligibility to remain the U.S. The order also requires the Secretary of DHS to allocate resources and take all appropriate action to construct and operate detention facilities at or near the Mexican border, and to hire 5,000 additional Border Patrol agents. Moreover, the Secretary is to reinvigorate the section 287(g) program, under which DHS deputizes state and local law enforcement officers voluntarily to perform the role of Federal immigration agents.
The Interior Safety order states the Executive Branch’s policy to be that jurisdictions failing to comply with applicable Federal law do not receive Federal funds, except as mandated by law. It directs the Secretary to terminate the Priority Enforcement Program, begun under President Obama, and reinstate the “Secure Communities” program. This is a program wherein state and local authorities are required to send arrestees’ fingerprints not only to criminal databases but to immigration databases as well, facilitating immigration authorities’ decisions as to which such arrestees should be the subject of deportation proceedings. The order also directs the Secretary to begin hiring an additional 10,000 immigration officers.
The order prioritizes for deportation certain aliens designated under current law, such as terrorists, as well as removable aliens who: have been convicted of any criminal offense; have been charged with any criminal offense, where such charge has not been resolved; have committed acts that constitute a chargeable criminal offense; have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency; have abused any program related to receipt of public benefits; are subject to a final order of removal; or, in the judgment of an immigration officer, otherwise pose a risk to public safety or national security.
The order creates a far larger pool of potential deportees than obtained in recent years. Indeed, virtually all undocumented aliens potentially could be encompassed on this list.
The third order, signed January 27, 2017, temporarily denied entry to the U.S. of all travelers, except US citizens travelling on passports, from Iraq, Syria, Sudan, Iran, Somalia, Libya, and Yemen in order to review vetting standards. It also suspended the worldwide refugee program for 120 days for the same purpose, except that the entry of Syrian refugees was suspended indefinitely. Upon resumption of refugee entry, priority is to be given to persecuted religious minorities. The enforcement of this portion of the order has been stayed by Federal courts. The order reduces the number of admissible refugees for FY17 to 50,000. A new Executive Order, effective March 16, 2017, revoked and replaced the January 27 order. It remains broad in scope, is 90 days in duration, but is somewhat less sweeping than the January 27 order. Iraqi travelers are no longer subject to the suspension of entry. A series of categorical exceptions and case-by-case waivers regarding the suspension of entry for those from the other six countries are provided. Refugee admissions are suspended for 120 days, subject to specified waivers, so that vetting procedures can be reviewed. Refugee admissions for FY 17 are capped at 50,000. This order has been stayed under a Temporary Restraining Order by Hawaii federal district court judge hours before it was to become effective.
On February 20, 2017, Secretary of Homeland Security John Kelly issued two memoranda to his Department implementing these Executive Orders. While the memorandum enforcing the order regarding safety in the interior rescinds prior inconsistent DHS memoranda, guidance, and directives, it expressly leaves in place the 2012 and 2014 Obama Administration memoranda protecting those who came to the United States as children, and parents of US citizens or permanent residents. Other than these latter exceptions, DHS “no longer will exempt classes or categories of removable aliens from potential enforcement.” This memorandum reiterates the priorities for removal expressed in the order. While the memorandum directs the Director of ICE to take all appropriate steps to hire 10,000 agents and officers, as well as the support and legal staff needed to support their activities, DHS may have to look for additional funding from Congress. The memorandum on border security and immigration enforcement fleshes out the implementation of the border security order.
What is Next?
An Executive Order on H1-B visas, which pertain to professional, high skilled immigrants, has been expected. It has been believed that President Trump would trim back this visa program on the grounds that it displaces Americans from these jobs, rather than fill genuine vacancies. The program has long had its critics on these grounds. Senate Judiciary Committee Chairman Chuck Grassley (R-IA) is a leading Congressional critic who has introduced bipartisan legislation in recent Congresses, including the 115th Congress, which seeks to redress perceived grievances. Senate Finance Committee Chairman Orrin Hatch (R-UT) is a strong supporter of the program, although he has acknowledged that it needs some reforming. He has floated some potential reforms, including imposing a cap on the number of H1-B visas any one employer may apply for. The President recently signaled a somewhat softer tone on legal immigration and called for a merit-based legal immigration system. Whether he can be persuaded that this program, with modifications that still leave it a valuable and available tool to employers who need to use these visas, can fall within his comfort zone remains to be seen. On March 2, 2017, his Administration suspended expedited processing of H1-B applications for companies that pay an extra fee. While characterized as an administrative adjustment to accommodate proper processing, and not unprecedented in this visa program’s history, it is certainly consistent with a skeptical view of the program.
Congress will need to provide some funds for the implementation of the Executive Orders, including for construction of the wall on the southern border.
House of Representatives
The House Judiciary Committee (HJC) held a hearing on EB-5 investor visa program on March 8, 2016. While it has its Congressional supporters, there has been much bipartisan Congressional criticism of this program, including by HJC Chairman Bob Goodlatte (R-VA). Chairman Grassley and Senator Pat Leahy (D-VT), testified critically at the hearing.
The program expires on April 28, 2017. An effort to reform the program, including raising the investment thresholds and better targeting economic activity to depressed areas to address some of the reformers’ concerns, failed in the last Congress. While the Obama Administration issued a Notice of Proposed Rulemaking in mid-January, 2017 which addressed some of the reformers’ concerns and that was well received by most Members attending the hearing, the program needs to be reauthorized quickly. Whether Congress can enact legislative reforms to the program in such reauthorization remains to be seen. And without such reforms, there is some doubt as to whether its Congressional critics will allow it to be extended again.
The HJC is also likely to focus at the outset of this Congress on enforcement legislation it has passed in recent Congresses, and press for Floor consideration. Such legislation includes mandatory e-verify legislation, which, in turn, will have to address the unique circumstances of agricultural workers. Bills which tighten requirements for the admission of refugees and asylees are ripe for early action, and in line with the new President’s outlook. While a new sponsor will be needed in light of Congressman Randy Forbes’ defeat, legislation addressing vetting procedures for visas is another candidate for action. An interior enforcement bill is also likely. Depending upon the Trump Administration’s position on undocumented children brought to this country who were protected by an Obama Executive Order — the “Dreamers” — there may be legislation addressing their status. While President Trump campaigned on rescission of that Executive Order, he has recently sounded more accommodating to this group. As mentioned earlier, his Administration has expressly declined to overturn the prior Administration’s guidance on accommodating these children, as well as similar guidance on the parents of U.S. citizens and permanent residents.
Once these measures are processed, the HJC could consider legal immigration issues. Even if the President issues an Executive Order on H1-B high skilled visas, Congress is likely to consider legislation reforming the program. In addition to the Senators mentioned earlier, Congressman Issa has introduced legislation on skilled workers in the past. Congressmen Ted Poe (R-TX) and Raul Labrador (R-ID) have long been interested in legislation which addresses lower-skilled, essential workers.
In the Senate, the Judiciary Committee continues to work through nominations to the Department of Justice and will begin hearings on Supreme Court nominee, Judge Neil Gorsuch on March 20. Planning of the immigration agenda continues in the Committee.
Chairman Grassley will pursue both legislation and oversight in the immigration field. He has already held a hearing on marriage fraud in the K visa program. Aside from his long-standing interest in the H-1B and L-visa programs, reflected in his current legislation, he is a sponsor of legislation making aliens associated with criminal gangs inadmissible, deportable, and ineligible for various forms of relief. As well, he is a sponsor or co-sponsor of e-verify legislation; legislation penalizing aliens for a mandatory minimum of 5 years who re-enter the country after being removed following a conviction for an aggravated felony or following two or more convictions for illegal re-entry, and up to 10 years for an alien re-entering the country after being denied admission, excluded, deported, or removed on three or more prior occasions (Kate’s Law); legislation requiring the detention of an undocumented alien or one who holds a revoked nonimmigrant visa or document, and has been charged in the US with a crime resulting in death or serious bodily harm (Sarah’s law); and legislation requiring the detention of an unlawfully present alien who has been charged with driving while intoxicated and makes habitually drunk drivers inadmissible and removable. These bills are obvious candidates for action in this Session.
In his address to a joint session of Congress, President Trump spoke of reforming legal immigration, and reshaping it toward admission of immigrants based on merit. Senators Cotton and Perdue have introduced a bill which curtails legal immigration, and have discussed it with President Trump who they say had a favorable reaction to it. This bill, however, would likely face a successful Senate filibuster with Democrat votes alone.
There are discussions among some House Republicans, including Rep. Labrador, and among some Senate Republicans, including Senators Thom Tillis (R-NC) and Lindsay Graham (R-SC), about how to proceed to make meaningful reforms to our legal immigration system. One idea being discussed is balancing legislation representing compromises, say, enacting border security legislation together with legislation protecting the Dreamers. Right now, however, it is difficult to see a path forward for such paired approaches at least until a variety of enforcement measures have been sent to the President.
Moreover, with Republicans facing some clear splits in how to address health care legislation and tax reform, any major legislative effort to address legal immigration, with the exception of some narrow visa programs, would likely have to wait until late in this Session or until the Second Session of this Congress is underway.