What Will Donald Trump Mean for Employment-Based Immigration?

10. Nov. 2016

Donald Trump won the election with a tough stance on undocumented immigrants, but what changes are expected for employment-based immigrants?  Little is known at this time, but here are some areas to pay attention to:

  1. TN status: Trump has promised to withdraw the U.S. from NAFTA, which not only facilitates free trade with Canada and Mexico, but also allows certain professionals who are citizens of Canada and Mexico to obtain TN status for employment in the U.S.  Although the U.S. may withdraw from NAFTA 6 months after providing written notice, which would bring an end to TN status, Trump is likely to soften his stance post-election and renegotiate as opposed to withdraw. 
  2. H1B & Labor Certification: Trump has called for more controls to ensure open jobs are offered to American workers first.  This is not a new concept.  The existing labor certification process requires employers to test the job market and prove there is a shortage of qualified and willing U.S. workers.  Some H1B employers are required to do the same.  It is not yet known whether or how Trump will introduce additional hurdles.
  3. Visa Processing: although background checks are already in place for visa applicants, Trump has called for more screening and “extreme vetting” for all Muslims.  Therefore, visa processing may slow, especially for applicants from certain countries.  Some of Trump’s more controversial proposals such testing an immigrant’s ideological views on religious freedom, gender equality and gay rights raise constitutional issues and will be challenged in court.
  4. President Obama’s Executive Actions:  President Obama’s immigration executive actions can be undone by Trump.  The benefits that have been or is in the process of being introduced for employment-based immigrants include:

A.  Work authorization for spouses of H1B workers with an I-140 approval;
B.  Work authorization for eligible inventors, researchers, and entrepreneurs;
C.  Improve portability for I-485 applicants by allowing career progression and more job mobility; and
D.  Modify the Visa Bulletin system to more simply and reliably determine immigrant visa (permanent residency) availability.

The reality is more than half of America’s startup companies valued at $1 billion or more were founded by immigrants.  Most of those entrepreneurs as well as many of their key personnel have held employer-sponsored visa status.  Surely, Trump understands that the tap for employment-based immigration cannot be turned off without harming our economy and jeopardizing our global competitiveness.

In fact, a Trump presidency makes it possible for employment-based immigration to once again be legislated separately from the more controversial matter of undocumented immigrants, as it had been before President Obama pursued comprehensive immigration reform.  If so, the Republican controlled Congress may actually pass bills that allow more highly-skilled workers to immigrate under the employment-based path.