OPINION: How the Immigration Landscape Changed in 2017

by Elizabeth Brettschneider

When Donald Trump won the election, many immigrants and their advocates feared the worst. Now that President Trump has been in office for over a year, I wish I could write that everyone’s fears were overblown, but that simply isn’t true. The administration’s actions have met and in some cases exceeded the worst fears of many immigrants and immigration practitioners.

The changes in the last year show the administration’s intention to attack not just “illegal” immigration but also legal. For the most part, before this current administration, there was a general consensus that immigration is essentially good for the United States not only for economic and social reasons but because it is how this country was founded. But the Trump administration is clearly of a completely different mindset. Hampering even legal immigration, a move that previously would have been encouraged only by those on the fringes of politics, has now become the goal of the administration in power. President Trump and his administration have attempted to frame immigration as a threat to US security and success. In this post, we will look at some of the key areas of immigration that have been affected by the policies of the Trump administration.

1. Prioritizing All Undocumented Immigrants for Removal

It was only a few days into the Trump presidency last year when he issued an executive order reversing President Obama’s enforcement priorities. Whereas the Obama administration focused on removing immigrants who had committed serious crimes and made recent border crossings, Trump made all undocumented immigrants priorities for removal from the US—regardless of their criminal background.

In 2016, more than ninety percent of the immigrants deported from the US had been convicted of serious crimes. In contrast, in 2017 a third of those immigrants arrested in 2017 had no criminal convictions at all but were simply in the US without legal status. The removal rate between January and September of 2017 increased by thirty-seven percent from the 2016 rate and arrests were up forty-two percent. This change in priorities has given Immigration and Customs Enforcement (ICE) agents extreme discretion in their enforcement and sent waves of fear through immigrant communities. In addition, as a result of these enforcement priorities, backlogs in the immigration courts have continued to increase, further congesting the system.

2. Travel Ban

The travel ban targeting certain Muslim-majority countries has been probably the most talked about action in immigration news last year. Who can forget the images of protestors at the nation’s airports? Media coverage was non-stop and immigration lawyers were labeled by some as heroes (not something that we often see). The executive order was challenged in the courts and the administration issued a revised travel ban still targeting Muslim-majority countries and, in a third attempt, issued travel restrictions for certain countries. This month the Supreme Court has announced they will take up Trump’s most recent travel restrictions.

At this point, although individuals from the listed countries can apply for waivers to be allowed to enter the US, to date we have not heard of any being granted. The media has widely reported stories of how this ban has separated families and prevented people from receiving life-saving medical treatments.

3. US Refugee Program Under Attack

As the world experiences a humanitarian crisis with a record level of displaced people not seen since the end of World War II, the Trump administration is doing everything in its power to slash the number of refugees admitted to the US. In addition to the temporary outright ban on refugees as part of the travel ban the administration called for an investigation into the refugee programs from eleven mostly Muslim countries. In September last year, the administration set a ceiling of 45,000 refugee admissions for the 2018 fiscal year—the lowest amount since 1980 and a significant reduction from the 110,000 allotted by the Obama administration in the previous year. The administration also withdrew from the UN Refugee Pact in December 2017 and, of course, Trump’s now infamous call with Australian Prime Minister Turnbull turned sour when discussions turned to honoring the agreement made by the Obama administration to take 1250 refugees from Australia, although after the call groups of these refugees have been resettled in the US. The US has historically been a global leader in protecting and admitting people persecuted in their homeland, with some unfortunate exceptions, of course; but under the Trump administration this is certainly not the case.

4. Embassy/Consulate Crackdown

Over the last year, US Embassies/Consulates abroad have implemented tougher vetting of applicants and seems to be re-scrutinizing cases already approved by US Citizenship & Immigration Services (USCIS) to a level never seen before. Even though a consular officer has limited ability to “re-adjudicate” a petition that USCIS has already approved, we have seen them essentially do just that. Moreover, they are adjudicating certain visas by a standard different than what USCIS uses, and we are aware of Embassies/Consulates requesting higher-level proof than required for the visa application. One example of this is with O-1 visas. We have heard of officers telling applicants that they weren’t at the level of Adele so they don’t qualify for the O-1 visa. As we have written about previously, that level of fame is not required for the O-1. Yet, this type of questioning is affecting visa appointments, and it has certainly become a trend that visa applicants have to anticipate. 

5. The “Buy American Hire American“ Executive Order and Its Impact on Petition and Visa Adjudications

Early last year the president issued this executive order saying:

In order to create higher wages and employment rates for workers in the United States, and to protect their economic interests, it shall be the policy of the executive branch to rigorously enforce and administer the laws governing entry into the United States of workers from abroad.

Commonly now referred to as “BAHA,” this directive is now affecting many aspects of US immigration, namely in what way visa applications are adjudicated both at US Embassies/Consulates abroad and by USCIS here in the US. Applicants attending visa interviews are receiving such questions as: “Why can’t an American do your job?” According to US immigration law and regulations, most visa types do not require proving that a qualified American is not available for the job yet this BAHA announcement seems to be affecting how the US government is adjudicating petitions and conducting visa appointments.

6. Extensions of Stay No Longer Given Deference

In October 2017, the government announced that it would no longer be giving deference to previously approved petitions. Thus, an application which is seeking an extension of stay for the same job at the same employer without change will now be adjudicated anew from scratch. The system that had previously simplified the extension process is no longer, and this change will likely cause even more delays to an already delayed process.

7. More H-1B Requests for Evidence (RFE)

USCIS announced in April 2017 the rescission of a guidance memo that advised that since computer programmers are commonly required to have a bachelor’s degree the position qualifies as a specialty occupation under the H-1B rules. With this, USCIS was foreshadowing what was to come, but I’m not sure anyone expected the rash of Requests For Evidence (RFE) and denials that followed. Suddenly, without any change to the immigration law or regulations by Congress, USCIS adjudicators were questioning whether a job categorized as entry-level could qualify as a specialty occupation and thus an H-1B. The Service has been essentially confusing the seniority of the position with the complexity of the position. After years of filing H-1B applications for entry-level jobs without any issues, we can no longer be assured of the same adjudication standard. 

8. Additional Green Card Interviews Causing Delays

In August 2017, USCIS announced that it would now interview all employment-based Green Card applicants. It used to be rare that USCIS requested an interview for an employment-based case but no longer. While this may seem a minor change, in reality it affects more than just those applying for a Green Card through employment. The local USCIS offices that have to conduct the interviews only have so much calendar space and personnel. Thus, marriage-based Green Card cases and citizenship applicants are seeing their processing times increase along with the employment-based cases. In this new world, everything takes much longer.

9. New 90 Day Rule

In September 2017, the US State Department changed their policy guidelines for consular officers as published in their Foreign Affairs Manual (FAM). The change was made to the section on fraud/misrepresentation, specifically the amendment concerning foreign nationals who demonstrate conduct inconsistent with their visa type. If the conduct occurs within ninety days of entry on a non-immigrant visa to the US, a presumption of fraud and willful misrepresentation can be inferred. Needless to say, the harsh consequences of this change have worried legal practitioners but it is too early to tell the overall impact it will have.

10. TPS Termination for Nicaragua, the Sudan, Haiti, and El Salvador

Temporary Protected Status (TPS) is a form of humanitarian protection for citizens of countries embroiled in violent conflict or natural disaster. USCIS may grant TPS to eligible nationals of certain countries (or parts of countries), who are already in the United States. Eligible individuals without nationality who last resided in the designated country may also be granted TPS. In a series of announcements over the last few months, the government has announced that it is ending the program of temporary protected status for Nicaraguans, Sudanese, Haitians and Salvadorians and is looking into possibly ending it for Hondurans. Individuals from some of the most dangerous places on earth will now be forced to return to countries that in many places are dealing with extreme gang violence and economic poverty.

11. DACA Program

Deferred Action for Childhood Arrivals (DACA) was an Obama-era program that gave deportation relief and work permission to people who came to the US without authorization as children. President Trump announced last year the termination of the program and the approximately 800,000 people who had been protected can no longer be assured of their ability to remain in the US. Trump asked Congress to enact legislation to help them but to date nothing has been done. Despite the most recent court injunction and USCIS’s announcement that they would resume accepting DACA renewals, the long-term status of DACA recipients is still unclear.

12. Entrepreneurs Policy

We would have thought that the Trump administration would be more open to entrepreneurs. Before Trump took office, there was an announcement that a new entrepreneurs policy would be put in place to more easily allow immigrants to invest in the US; however, the new administration did everything it could to delay and essentially kill the initiation of this policy. Only after a lawsuit did the administration begrudgingly announce that it would start accepting applications for this program. The Department of Homeland Security, however, has announced its plan to publish a proposed rule to eliminate the program. Therefore, it is expected to be short-lived. Additionally, with the announcement that USCIS would begin to accept applications, they released the required form and instructions; however, the documents were riddled with errors and based on a draft rule instead of the final rule. Borrowing language from Trump himself, I would say it’s a total disaster!

In the waning days of 2017 we saw how the Trump administration wants to keep cutting away at the current immigration system through further limitations on the H-1B visa, limits to family-based immigration (what President Trump calls “chain migration”), and removing work authorization from H-4 spouses of H-1Bs, among other areas. Of course, there were a number of immigration-related plans that Trump proposed that actually didn’t come to fruition (yet)—such as building a border wall paid for by Mexico, ending birth right citizenship, and rounding up all eleven million undocumented immigrants to remove them through a “deportation force.” While this year has been a tough one for immigrants and the attorneys and friends who seek to help them, in this time of uncertainty our firm will continue to advocate for our clients. We’ve been through tough times in the immigration world before, and we will continue to fight for what is right.