Immigration bar warily girds for Trump’s return

By Kris Olson

While pledges to stop undocumented migrants from crossing the southern border and to conduct mass deportations may garner the most media attention, attorneys say that they expect President Donald Trump’s second administration to once again use subtler tactics to throw a wrench in ways to enter the country legally, including the nation’s visa programs.

But exactly what that will look like is anyone’s guess.

“Trump still can’t help himself,” said Ted J. Chiappari of New York City, head of Duane Morris’ immigration practice group. “He really does thrive on keeping the other side guessing, which means chaos, and businesses don’t like chaos.”

However, whether the administration implements its immigration agenda thoughtfully or haphazardly, he said, “It’s not going to be friendly to businesses that rely on foreign labor.”

If there is a silver lining, it is that employers and their counsel will be less surprised by the pace of change this time around, Roger K. McCrummen, of McCrummen & McCullick of North Kansas City, Missouri, said.

First term actions

Before Trump’s first term, “We had regular monthly liaison meetings with our local immigration offices,” he said. Once Trump took office, “Those were canceled, and the … administration wouldn’t send officials to the meetings,” which McCrummen called “kind of a shock.”

Now, he expects those meetings to cease once again.

In his first administration, Trump rescinded an Obama administration memorandum directing the U.S. Citizenship and Immigration Services to give deference to its prior decisions when reviewing renewals of visas, such as the H-1B professional work visa.

Before Trump, the holder of an expiring visa would sail through the process, if little about their work situation had changed.

“What we started seeing was that we were suddenly getting requests for evidence on cases that should have been given deference for approval,” McCrummen said. “A lot of them were just ridiculous requests for evidence, but we would spend hours and hours responding to them and compiling information and documentation.”

Most applications would be approved.

“But it delayed everything quite a bit, it cost our employers more money to respond to these requests for evidence, and the processing time slowed way down,” McCrummen said.

In a similar vein, he noted that employers had become accustomed to having USCIS approve employees they were sponsoring just on paper filings, without requiring interviews.

Once the Trump administration came in, McCrummen said, “All of a sudden they’re scheduling interviews for all of these cases, which also slows down processing of everything, and it adds a burden to the workload of the USCIS.”

Possible other changes

Chiappari said he would not be surprised if Trump just takes the position that, “We need to reexamine the entire visa application process, so for the next 60 days or 90 days, we’re just not going to process any visas.”

It’s not that waiting 60 or 90 days is the end of the world, he said. “But in terms of how businesses operate, and just in time and staffing, it could make a huge difference.”

Trump has also proposed increasing the prevailing wage to make green cards and H-1B visas less attractive. Changing those regulations would take time, given the required notice-and-comment period.

“But what he can do is just reinstill the culture of ‘no’ at USCIS and the consular posts and say, ‘Your performance evaluation will depend on how carefully you vet these applications,’” Chiappari said. “So, instead of taking three to six months, it may all of a sudden take six to 12 months, or 12 to 18 months, to adjudicate cases.”

Businesses might be able to sue, but that would take time, too.

It is hard to overstate how much havoc the first Trump administration created with employment-based immigration, said McCrummen’s colleague, B.J. McCullick. There was no way to be proactive because attorneys first learned of the changed review standards or interpretations of the law when they started to receive adverse decisions.

“It forced us to be incredibly reactionary,” McCullick said.

The immigration bar is also expecting there to be crackdowns through site visits and audits.

McCullick said the firm has been “sending notifications to employers to say, ‘Here’s some internal areas you may want to make sure you have buttoned up before the new administration.’”

But N. Peter Antone of Antone, Casagrande & Adwers in Farmington Hills, Michigan, said he harbors at least some hope that the fact that the wife of the vice president-elect, Usha Vance, and the heads of President-elect Trump’s Department of Government Efficiency, Elon Musk and Vivek Ramaswamy, are beneficiaries of skills-based immigration will translate into a recognition of the benefits to the U.S. economy of that form of immigration.

Campaign promise’s fate

Antone said that he hopes that the saber-rattling about mass deportation will prove to be more campaign bluster than an actual plan.

“I trust the collective wisdom of the American people,” he said. “I realize many are terrified, but we as a country have enough checks and balances.”

Chiappari said one possibility is that Trump’s efforts at the border will go no further than, for example, setting up a big detention center in Texas to generate media attention.

But there’s still plenty to be concerned about away from the cameras, McCullick said.

“What was most eye-opening for me personally last time is how much the administration could impact lawful immigration without a single action or word uttered from Congress,” she said. “It was just completely done through administrative guidance [and] executive order.”

Still, she noted, this time “I think we’re a little bit more prepared.”