What Are Potential Small Business Impacts of New Immigration Policies?

Exploring the important features of the administration’s immigration policy and potential impact on small business employers.

Editor’s note: Business and immigrations looks at whether there may be challenges for small business owners and potential insights. 

The Trump Administration clearly seeks to crack down on undocumented immigration. What is less well known are the mounting challenges created to limit legal immigration. Over the next series of articles, we are going to explore the important features of the Trump Administration’s immigration policy and its impact on small business owners and staffing.

1 The Future of DACA,

The Deferred Action for Childhood Arrivals (“DACA”) was intended to regularize the status of young persons who had been brought to the United States in undocumented status as children.

One of the requirements of the program has been that DACA beneficiaries are enrolled in a course of study.  Five years after the program started, many DACA recipients are now skilled immigrants in their own right.

On September 5, 2017, however, the Trump Administration announced the elimination of DACA over a six-month period.  

Although the Administration had expressed sympathy for so called “Dreamers”, the decision to end the DACA program was based on legal formalism, i.e. that the program was unconstitutionally framed by the Obama administration.

President Trump has urged Congress to do the “right thing” and pass legislation designed to help Dreamers, who hazard falling out of status and becoming deportable after the six-month deadline passes, but without presidential leadership on the issue, it is hard to imagine how Congress will be able to pass effective legislation within the short time frame imposed by the Administration.

2. America First

The Administration, furthermore, seeks to complicate the ability of skilled foreign nationals’ obtaining non-immigrant visas and substantially lengthening the process for foreign nationals’ seeking an employment-based greencard.

The “Buy American and Hire American” Executive Order, issued by the Administration on or about April 18, 2017, purports to give priority to policies intended to encourage manufacturers to make products in the U.S., use American-made components, and to encourage the hiring of American workers.

The order specifically called out the H-1B program, which has long been accused by its critics of being riddled with fraud, for reform.

In practice, the executive order has been construed by the enforcement organs of the immigration system, i.e. U.S. Citizenship and Immigration Services (“USCIS”) and the U.S. Department of State, to encourage officers in the field to restrict more vigorously the admission of skilled foreign nationals.

A.   Hire American and Curb use of the H-1B Visa

The H-1B program is the primary work visa program offered by the U.S. government to afford foreign nationals, holding at least U.S. equivalent baccalaureate degrees, the opportunity to work in the U.S.

For the first time, Wage Level 1 applicants (many of whom are new graduates from U.S. educational institutions), have received Requests for Evidence (“RFE”) challenging the positions offered them as not being complex enough to meet H-1B standards.  Critics have countered that USCIS’s challenge to Wage Level 1 employees is wholly in violation of the applicable law. Indeed, the statutory framework of the H-1B program makes it very clear that young graduates can qualify for entry-level H-1B positions.

Next page- The B,C, D’s and Take Aways on Small Business and Immigration