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Trump Has Broad Power To Implement Immigration Policies

Trump Has Broad Power To Implement Immigration Policies

NEW YORK/WASHINGTON (Reuters) – President-elect Donald Trump will be able to make many of his promised changes in immigration policy unilaterally by exercising the same kind of executive powers he criticized President Barack Obama for using.

But while most of the measures laid out in a ten-point immigration policy plan on Trump’s transition website could be set in motion without legislative approval, fully implementing them would require funding that Congress would have to approve, legal experts said.

Two core pieces of Trump’s plan, for example, involve removing more criminal immigrants who are in the country illegally and ending “catch and release” of those who cross the border illegally and are awaiting court hearings.

Shifting policy on both issues could be accomplished by putting out new enforcement directives to agents in the field from the Department of Homeland Security.

But the changes would be expensive, requiring a dramatic expansion of immigration courts and detention facilities used by Immigration and Customs Enforcement, said  Stephen Yale-Loehr, an immigration law expert at Cornell Law School.

More deportations would require more staff at every level of the system to investigate, apprehend and process those targeted. Immigration courts already have a backload of more than 500,000 cases. Detention space is currently stretched to house 41,000 immigrants currently awaiting deportation or hearings and far more holding facilities would be needed if detainees were no longer released while awaiting court dates.

Even then, completely ending the release of immigrants awaiting hearings would be difficult: A recent court decision has prohibited detention longer than 20 days for adults and children migrating together, a demographic that surged to more than 77,000 in fiscal year 2016.

Trump’s transition team has not explained how the new president intends to implement his plans.

“The President-elect is very focused on naming his cabinet, building out his administration and preparing to hit the ground running on Inauguration Day,” said Jason Miller, a spokesman for the Trump transition team. “There will be plenty of time to discuss detailed policy specifics after the swearing-in.”

Democratic attorneys general and civil rights groups are already busy preparing legal arguments to try to stop Trump’s executive actions should he implement some of his proposals. The pushback will be similar to the challenges Obama faced from Republican attorneys general and conservative groups when he acted alone to try to shield nearly 5 million immigrants from deportation.

FIRST DAYS

Among the easiest immigration promises for Trump to fulfill will be his vow to reverse Obama’s executive orders. The president-elect could eliminate with a pen-stroke Obama’s 2012 policy allowing immigrants brought here illegally as children to apply for work permits, a program known as DACA that Trump has said he will end.

What would happen next is unclear. More than 740,000 people have been approved for deportation relief under the program, and many worry that their addresses and other identifying information could be used by the new administration to target them for deportation.

Steve Legomsky, former chief counsel at U.S. Citizenship and Immigration Services, said no laws would prevent the Trump administration from using program records for immigration enforcement, but the president-elect has not said he would do so.

Denying visas to people from countries “where adequate screening cannot occur,” another point on Trump’s immigration plan, could also be easily accomplished by the president.

Under current law, the administration can unilaterally suspend visas for any individuals or groups of people deemed “detrimental to the interests of the United States.”

In the past, presidents have chosen to apply this statute narrowly – to keep out particular dictators or to deal with emergencies, for example. But the law is worded very broadly and could theoretically be applied to entire countries, said David Martin, emeritus professor of international law at University of Virginia School of Law.

Trump’s promise to make legal immigration better serve America and its domestic workforce would likely focus, at least initially, on temporary employment visas such as the H1-B, which are issued to specialized workers in fields such as technology.

While Congress sets the maximum number of visas that can be issued annually, Trump could ask the Department of Justice to step up investigations of companies using those visas, with a focus on whether they are discriminating against American workers. This could include banning more tech outsourcing firms, which are the largest users of H-1B visas, from the program if they violate the rules, said Ron Hira, a professor at Howard University.

“Employers are going to be caught up in the cross hairs,” said business immigration lawyer Matthew Dunn from the law firm Kramer Levin.

(Reporting by Mica Rosenberg in New York and Julia Edwards Ainsley in Washington D.C., additional reporting by Roberta Rampton; Editing by Sue Horton and Mary Milliken)

IMAGE: A young boy holds U.S. flags as immigrants and community leaders rally in front of the U.S. Supreme Court to mark the one-year anniversary of President Barack Obama’s executive orders on immigration in Washington, November 20, 2015.REUTERS/Kevin Lamarque  

Tech Worker Visas Face Uncertain Future Under Trump, Sessions

Tech Worker Visas Face Uncertain Future Under Trump, Sessions

By Stephen Nellis

SAN FRANCISCO (Reuters) – The main U.S. visa program for technology workers could face renewed scrutiny under President-elect Donald Trump and his proposed Attorney General, Senator Jeff Sessions, a long-time critic of the skilled-worker program.

H-1B visas admit 65,000 workers and another 20,000 graduate student workers each year. The tech industry, which has lobbied to expand the program, may now have to fight a rear-guard action to protect it, immigration attorneys and lobbyists said.

Trump sent mixed signals on the campaign trail, sometimes criticizing the visas but other times calling them an important way to retain foreign talent.

Sessions, however, has long sought to curtail the program and introduced legislation last year aiming to make the visas less available to large outsourcing companies such as Infosys. Such firms, by far the largest users of H-1B visas, provide foreign contractors to U.S. companies looking to slash information technology costs.

“Thousands of U.S. workers are being replaced by foreign labor,” Sessions said at a February hearing.

A spokesperson for Sessions did not immediately respond to a request for comment. A Trump transition team spokesperson declined to comment.

The H-1B visa is intended for specialty occupations that typically require a college education. Companies use them in two main ways to hire technology workers.

Tech firms such as Microsoft and Google typically hire highly skilled, well-paid foreign workers that are in short supply. They help many of them secure so-called green cards that allow them to work in the U.S. permanently.

By contrast, firms such as Infosys and Tata Consultancy Services, both based in India, use the visas to deploy lower-paid contractors that critics say rarely end up with green cards.

Infosys did not immediately respond to a request for comment. A Tata spokesman declined to comment.

LABOR LOTTERY

H-1B visas are assigned through a lottery once a year by U.S. Citizenship and Immigration Services. This year, companies filed 236,000 petitions for the 85,000 available visas, a cap set in U.S. law. They are awarded to employers – not employees – and tied to specific positions.

Both Democratic and Republican critics have argued that companies such as Walt Disney Co and Southern California Edison Co, a utility, have used the program to terminate in-house IT employees and replace them with cheaper contractors.

Sessions last year urged then-Attorney General Eric Holder to investigate Southern California Edison’s use of H-1B visas in a letter than was also signed by Democratic Sens. Bernie Sanders, Richard Durbin and Sherrod Brown.

Disney and Edison did not immediately respond to requests for comment but have said previously that they paid foreign contractors comparably with local staffers.

The Justice Department in 2013 settled a visa fraud case with Infosys for $34 million.

Federal investigators accused Infosys of using easier-to-obtain business travel visas to import foreign workers who were required to have H-1B visas. Investigators also alleged that Infosys told foreign workers to lie to U.S. officials about the cities where they would work.

In the settlement, Infosys denied the allegations but agreed to retain a third-party auditor for two years and to provide the government with detailed descriptions of what its visa holders were supposed to be doing in the U.S.

CALLS FOR CHANGE

Several constituencies have called for program reforms, including the Institute of Electrical and Electronics Engineers, that industry’s largest trade group. It wants the lottery ditched in favor of a system that would award visas to companies offering the highest-paying jobs, said Russ Harrison, director of government relations.

That could potentially shut out employers looking to mine the program for cheap foreign labor. Sessions included a similar measure in his 2015 bill.

Tech industry groups also want changes. FWD.us – the immigration lobbying group backed by Facebook co-founder Mark Zuckerberg – supports setting higher minimum wages and giving priority to companies that sponsor H-1B workers for green cards.

“We’re going to advocate for expanding the program, but we’re also going to advocate for reforming the program,” FWD.us President Todd Shulte said in an interview.

The current program mainly benefits big companies at the expense of both U.S. and immigrant workers, said Gaurav Mehta, a 32-year-old H-1B holder from New Delhi who works for a cybersecurity firm in San Francisco.

H-1B workers struggle to switch jobs without risking deportation, he said, which allows employers to pay them less.

“The current system is not working for Americans, and it’s not working for immigrants,” he said.

‘AMAZING PEOPLE’

Some Trump allies expect him to keep the program mostly intact, including Shalabh “Shalli” Kumar – an Indian-born Chicago businessman who donated $900,000 to his campaign.

“He has said to us that these are amazing people and it would be crazy to let them go,” Kumar said in an interview.

But Kumar has urged Trump to eliminate country-by-country quotas that create long waits for Indian and Chinese nationals to get green cards.

John Miano, an attorney with the Immigration Reform Law Institute – a conservative group that has been aligned with Trump – also supports prioritizing H-1B applications from companies offering higher pay.

Such a change would hit the outsourcing firms hard. The top 10 recipients of H-1B visas in 2015 were all outsourcing firms, according to government data compiled by the IEEE. Tata Consultancy Services topped the list by securing 8,333 H-1B visas.

Amazon, by contrast, ranked number 12 and was awarded just 826 H-1B visas. Google and Microsoft ranked No. 14 and 15, with Facebook at No. 24 and Apple at No. 34.

Some H-1B visa holders aren’t waiting. Sofie Graham – a marketer at the San Francisco startup BuildZoom.com and a dual Irish and British citizen – secured her H-1B visa last year. Although she could have worked for six years on the visa, she and the company decided to apply for a green card.

“Everywhere I looked, people were saying we should have fewer H-1Bs,” she said. “I just wanted to get a green card as soon as possible.”

(Reporting by Stephen Nellis; Additional reporting by Mica Rosenberg in Washington; Editing by Jonathan Weber and Brian Thevenot)

IMAGE: Donald Trump sits with U.S. Senator Jeff Sessions (R-AL) at Trump Tower in Manhattan, New York, U.S., October 7, 2016. REUTERS/Mike Segar/File Photo