Like love in the time of cholera, Immigration in the Time of Trump is likely to be marked by confusion, fear, and uncertainty. For those who believe America should have hermetically sealed borders and zero immigration; confusion, fear, and uncertainty is a diabolical policy that will surely discourage individuals from entering the United States. It will, however, do nothing to provide security, improve the economy, or heal divisions in our country.
The real issue, is what to do now if you must contend with Immigration for your personal life or investment in the United States?
First, check the date of this blog post because as of February 18, 2017, nothing has changed. Trump has not yet (but probably this week) will be issuing a revised Executive Order on the travel ban that is expected to achieve the same goal with more constitutionally acceptable language. We will have to wait and see the practical effect of the new order. Moreover, there has yet to be any paradigm changing policy directives or memoranda to USCIS on general visa processing. However, reading between the lines and checking the Tarot Cards, there is likely to be significant changes soon. Rather than speculating or prophesying we will wait to see how things progress. And a quick disclaimer, any references in this post to racial policies is not intended as punditry or political opinion, it’s the bizarre reality in which we find ourselves practicing immigration law.
Traveling on Existing Visas
As everyone now knows, President Trump’s first attempt at policy making on Immigration failed miserably and resulted in lawsuits and chaos at the airports. This seems to have quieted down. However, there are still isolated news reports of individual’s being intimidated by Border Patrol Agents and Customs Officials. For now, it appears that the clear majority of travelers are being stamped through and sent to baggage claim without being horribly offended. Thus, individuals traveling on valid visas (including Green Card holders) from the seven “banned countries” are being admitted in the ordinary course. However, if you have had problems with Immigration in the past or have even a minor criminal charge – it’s beyond the scope of this post to be more specific - then it’s not a good idea to test your visa status with a guy who probably wore a cheap red hat to vote on November 8th last year. Similarly, if you are visibly Muslim, you may want to temporarily refrain from travel until the Trump Administration has updated its insult to Muslims by revising its travel ban.
If you have filed for Immigration status or a made a visa application, anticipate delays. But you may be pleasantly surprised to find that you receive a relatively timely approval. Some of this is the residual effect of the Obama Administration, which emphasized competency and efficiency in the application process. Until those policies and operating procedures have been changed by the Trump Administration, pending applications are likely to remain on course. Citizenship applications, however, may be the exception. The current rumor – yes rumor – is that the Trump Administration wants to slow down the process for citizenship and make it more difficult. To emphasize, this is currently pure rumor – with a circumstantial sense of validity.
If you are applying for a family based green card, and you are a religion other than Muslim, the expectation is that your processing will be unaffected for now. If you are Muslim, your application may be subject to an adjudications officer that is not clear – or has a personal view – of the new policy towards the admission of Muslims. The new Executive Order may clear things up or make them worse. We can only hope that the “well-oiled” machine of the Trump administration will give clear guidance to its adjudications officers. One of the very real consequences of the now suspended travel ban, is that it has sent mixed messages as to the Administration’s policy toward the admission of Muslims into the United States. To a faithful public servant, this can be confusing and therefore delay a decision. If you are applying for family based immigration, you should be certain that your applications are well prepared, well supported (meaning professional translations of all foreign documents) and that you have ample support for the validity of your marriage. If you have any prior immigration history, failed applications, false statements, or a criminal history, you should hire an experienced Immigration Attorney. Given the strange times we are living in with the Trump Administration, you would do well to invest in competent counsel for any immigration process. But be a smart consumer, interview your attorney, and have a general background of your own situation so that you can determine the level of the prospective attorney’s understanding of your situation.
Employment Based Immigration
As yet, employment based immigration has not changed. However, employers should take care in the application process similar to family based applications. Both employer and applicants should be sure that all forms are accurate and well supported. The real pending issue for employers is likely to come on the enforcement side. It is expected, based upon the rhetoric and the people making immigration policy for Trump, that work place investigations are going to increase. This means employers should be sure that their I-9 files are up to date. In addition, audit files for all other work based applications such as the L1 and H1B audit files should be reviewed for accuracy and completeness. Even for private sector employers, incentives for E-verify use is likely to be broadened. We anticipate that within four years, E-Verify will be mandatory for all employers.
Employers and investors should not yet fall to full scale panic on Immigration. Despite the Trump administration’s endeavor to seal the borders of the United States from immigration, the business and investment community remains politically strong and well-financed. And while the Trump administration may no longer want the world’s tired, poor huddled masses who yearn to be free, it does still want money. Thus, businesses should prepare for delays and frustrations, but we anticipate that it will remain possible to bring workers into the United States.
The Time of Trump will Pass
Immigration in the Time of Trump will be challenging, but we should not give in or give up. The likely hope of the Trump Administration is that by creating fear, confusion, and uncertainty, they will be able to discourage and prevent immigration. Trump’s obvious immigration policy is to frustrate the world to the point that it gives up on the United States, that immigrants go elsewhere, and we are left to a quiet decline of our nation. Resist by pressing your immigration applications and petitions, litigating when necessary, but never giving up. Like time in general, the Time of Trump will pass. Thus, if we persevere in the present, we will succeed in the future.