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The Legacy of 2016: Uncertainty in Immigration Law and Policy
January 12, 2017 Darren P. Cross
2016 did not bring significant immigration reform or changes in the law but instead ushered in sweeping uncertainty as to what form immigration law and policy will take under the new administration. It is important to note that this uncertainty applies not only to undocumented individuals, but also to those here lawfully who rely on or seek immigration relief, and to any entity or organization who employs such individuals.
We have, since the election, seen a significant uptick in inquiries from businesses and foreign nationals concerned about what is to come.
In a somewhat surprising development, the additional interest seen by this office has come mostly from current skilled-workers (H1Bs, EB class visas etc.), permanent residents (LPRs) and foreign nationals with active business investments in the United States (treaty investors). In short, they are individuals who are lawfully present under current law and policy.
H1B Visas. Visas, particularly H1B visas have been a source of many business owners’ concerns. The talk of limiting the number or changing the criteria for issuance of H1Bs has left owners troubled as to the viability of their businesses due to staffing concerns. This has been of significant concern to those in the high technology industry here in Massachusetts (Route 128 Technology Corridor and Boston's Innovation District).
NAFTA/TN Visas. Visa holders have been questioning their futures if the U.S. pulls out of NAFTA, (which a new administration could do with only 6 (six) months’ notice). The TN visa is a direct derivative of NAFTA and as such would be invalidated along with a defunct NAFTA. Current skilled workers present on a TN visa may wish to speak with their employers about a possible transfer to a different visa class, (transfer to H1B, E Class, L class etc.). There are filing constraints and the number of visas per class is limited, however, the alternative is no longer having a valid work permit.
Treaty investors. Treaty investors are foreign nationals that invest a minimum amount of foreign capital in a U.S. based business (existing or new formation), employ U.S. workers and are granted a renewable EB-2 visa with immediate family as followers that allows them to lawfully reside and work in the U.S. The basis for this class of visa was to spur investment in the U.S. and job creation for U.S. workers. For this reason, we believe it is unlikely the EB-2 class/treaty investor will be significantly changed under a new administration. Although there are no absolutes, and we can therefore not guarantee what will eventually come to pass, it is important to note that some form of the treaty investor policy has been around for well over 100 years. It is an immigration issue along with the myriad of others that we will still monitor closely for any developments.
DAPA and Expanded DACA
Adding to the uncertainty, the United States Supreme Court was understaffed for the better part of 2016, with only eight justices sitting after Justice Antonin Scalia’s death in February. With the justices left sharply and evenly divided on many core issues, United States v. Texas, 579 U.S. __ (2016), came before the Court.
United States v. Texas deals with the constitutionality under the Take Care Clause of the United States Constitution of the Deferred Action for Parents of Americans program (“DAPA”), which is the result of President Obama’s executive action taken in late 2014. DAPA would have halted or deferred deportation of undocumented parents of United States citizens or lawful permanent residents and allowed them to work lawfully in the United States if they met certain criteria.
At the same time, the President modified and expanded Deferred Action for Childhood Arrivals (“DACA”), a policy that has been in place since 2012, and that allows undocumented minors who entered the United States to receive a renewable, two-year period of deferred action from deportation and eligibility for a work permit. Nearly 800,000 undocumented minors were able to take advantage of the DACA policy. In late 2014, President Obama announced he would expand DACA to eliminate the age ceiling and make individuals who arrived in the United States on or before January 1, 2010 eligible, and increase the renewal period from two to three years.
The original DACA policy instituted in 2012 remains in effect as of this writing. The DAPA program and the expanded version of the DACA policy, however, never took effect.
Two weeks after President Obama announced the DAPA program and the expanded DACA policy, 26 states filed suit in federal court to block execution of DAPA and the expanded DACA policy.
A federal district court judge in Texas issued a preliminary injunction against DAPA and the expansion of DACA, pending trial, the Fifth Circuit Court of Appeals affirmed and, in April 2016, the case went before the eight sitting justices. After seeking an additional briefing on the constitutional issues and hearing 90 minutes of argument, the justices split 4/4 and with no majority decision, on June 23, 2016, issued a one-line per curiam decision, stating only, “The judgment is affirmed by an equally divided court.”
The case remains in the trial court in federal district court in Texas. Continued defense of the case by the Department of Justice will be up to the new administration after January 20, 2017.
2016 left us with significant uncertainty about the future of immigration law and policy in the United States. Sweeping immigration reform is unlikely to occur immediately just given the nature of the legislative process. There are, however, some areas where the new administration can immediately change policy and practice. This includes possible elimination or curtailing of DACA (both renewals and/or the policy in its entirety) and the immediate removal of those found to be illegally present in the United States.
While we hope moderation prevails over rhetoric, businesses and individuals should prepare for any eventuality and, above all else, should be informed and stay informed from a reliable source about the changing state of the law and all developments. Do not rely on anecdotal information or others’ past experiences. The law is fluid. If possible, speak to an experienced immigration attorney, or obtain advice from a legal aid center in your community. In addition, excellent online resources include: