How Clinton and Trump 2016 Campaigns Compare on Immigration

October 25, 2016

Both Hillary Clinton and Donald Trump have ambitious plans for immigration if either are to be elected president of the United States of America.  Today’s article addresses some of their finer points on immigration and provide details on how those plans might impact U.S. employers, entrepreneurs and investors.  (For the sake of brevity, we’re only focusing on the two leading candidates.) Greencard for International STEM GraduatesCandidate’s Position:  As part of a comprehensive immigration reform, Hillary Clinton would develop a path for permanent residence for all international students who matriculate from an accredited university with a masters or doctoral degree in a STEM field.Practical Impact:  Huge!  (Or as some would say, Yuge!)  From an economic perspective, the U.S. would ultimately become the leading destination for all foreign students eager to study a STEM field in the U.S.  No doubt many U.S. universities would likely see an increase in revenue from tuition rates for foreign students.  The ability to retain talented STEM-educated foreign students also means these students can pursue additional research, start new companies, or be hired right off the bat by leading companies and bypassing the H-1B lottery entirely.  This might actually alleviate the H-1B visa quota.Feasibility Prediction: Moderate.  In order to implement a new pathway towards obtaining a greencard, a bill would need to pass both the Senate and the House (Congress) by a simple majority vote in order to be approved, reconciled, and presented to the President to be signed into law.  (This particular proposal cannot be implemented through Executive Action.)  Any immigration reform bill would therefore need to be structured in a way that aligns the interests of a majority of Congressional members.  (See how laws are made here.)  Therefore, the makeup of Congress is a huge factor in determining the likelihood of a comprehensive immigration reform bill being passed.Opposing Candidate’s Position: Donald Trump’s position in general is to ensure U.S. workers have a chance at the job market.  It's unclear where he stands on this specific issue at the time of publication. H-1B VisasCandidate’s Position: Donald Trump would abolish the H-1B visa as it is currently structured and require employers to test the labor market first before sponsoring a foreign worker for any employment visa.  There would be no exceptions.Practical Impact:  This proposal would impede economic growth.  For example, a multinational company would not be able to send its foreign managers to develop product in the U.S. without first attempting to hire U.S. workers to fulfill those roles.  In this example, if there are no other internal employees in the U.S. qualified to fulfill that role, and the foreign managers are in the best position and possess proprietary knowledge to develop the company’s product, it’s unclear how forcing the employer to test the labor market would enable the company to develop the product any faster.  Employers would be required to test the labor market for all work visas, which would delay hiring, delay product development, delay service fulfillment, etc.  The Department of Labor would likely experience an influx of labor certification applications as a result, and will likely have significant backlogs.  Meanwhile, other countries that have more generous laws on intra-company workers would see greater economic growth.Feasibility Prediction:  Low.  While Congress may be amenable to imposing a labor market test for certain types of employment visas, such as the H-1B visa, a blanket requirement for all employment visas would likely not pass Congress approval.Opposing Candidate’s Position: Hillary Clinton’s position on immigration reform does not specifically address H-1B visas, but does address the need to provide less burdensome methods for employers to recruit and retain foreign workers. Start-up VisaCandidate’s Position:  Hillary Clinton would develop a start-up visa allowing top entrepreneurs, who have secured financial support from U.S. investors to enter the U.S. to build technology-oriented companies.  Job creation and performance milestones would be part of the criteria for pursuing a greencard.  This too would be another component of Hillary Clinton’s comprehensive immigration reform bill.Practical Impact:  This proposal appears to be much broader than the Proposed Parole for Entrepreneurs by allowing entrepreneurs to demonstrate financial backing from any U.S. investor (rather than limiting it to venture capital firm with an established track record.)  If passed into law, Clinton’s start-up visa would superseded parole for entrepreneurs.  The balance of Clinton’s proposal for a start-up visa is still vague, but the good news is that it aims to provide a path to permanent residence rather than merely temporary work authorization.Feasibility Prediction:  Moderate.  See Greencard for International STEM Graduates, above, for a detailed explanation.Opposing Candidate’s Position: Donald Trump’s position on this issue is unknown at the time of publication. Mandatory E-VerifyCandidate’s Position:  Donald Trump would require an E-Verify system to be mandated nationally for all employers to prevent unauthorized employment of foreign workers.Practical Impact:  All U.S. employers may be required to enroll in the E-Verify system in conjunction with completing the Form I-9.  Although the current system is free, employers should be aware that failure to utilize the system properly (or at all), or discriminating against authorized workers may result in potential fines from Immigration Customs Enforcement.  Additional investment in time and training may be required of employers.Feasibility Prediction: High.  It is likely that any comprehensive immigration reform bill will contain a provision moving E-Verify from a voluntary system to a mandatory system for all U.S. employers.  To learn more about the program, please contact us for details.Opposing Candidate’s Position: Hillary Clinton’s position on this issue is unknown at the time of publication. Export Control ReformCandidate’s Position: Hillary Clinton indicated that she would “advance Export Control Reform, pursue policies to protect U.S. trade secrets and IP, and resist calls for forced tech transfer or localization of data.”Practical Impact: Private U.S. employers who manufacture, sell and distribute sensitive technologies and associated data must comply with export control laws, including the International Traffic in Arms Regulations (ITAR) and the Export Administration Regulations (EAR) to prevent those technologies from being accessed by unauthorized foreign nationals.  Efforts for accelerated reform may impact U.S. employers.  Companies that have historically employed highly qualified foreign nationals in the past may find those existing employees may now require heightened security clearances, which can only be achieved through obtaining permanent residence or citizenship.Feasibility Prediction: High.  Export Control Reform has been moving forward since at least 2014. Desire to tighten security around sensitive technologies and data, in light of recent cyber-attacks is strong and will likely gain bipartisan support.Opposing Candidate’s Position: Donald Trump’s position on this issue is unknown at the time of publication. J-1 VisaCandidate’s Position: Donald Trump would abolish the J-1 visa classification and instead offer “job opportunities to inner city youth.”  (This position appears to have been removed from the official Trump website so it’s unclear if this is still his official position.)Practical Impact:  The J-1 visa program contains 14 different programs at the moment, covering professor and research scholars, physicians, au pairs, camp counselors to summer workers (to name a few).  It’s unclear if Trump’s position is to abolish the entire J-1 visa classification, or just one program within the classification.  For example, the J-1 Physician program is an important pipeline that encourages U.S. trained medical physicians to practice medicine in underserved areas throughout the U.S. suffering from a severe shortage of medical professionals.  The J-1 Professor and Research program enables collaboration with foreign academicians in the U.S. to promote research and development of all kinds of research, producing results that significantly advance scientific and academic fields.  Abolishing the J-1 program in its entirety would be akin to throwing the baby out with the bath water.  U.S. research institutions would be unable to invite foreign scholars and researchers to the U.S. to collaborate on research.  It’s unclear what alternative would be available to them.Feasibility Prediction: Low. Abolishing an existing visa program that was enacted by law would require Congressional sponsorship and approval.  It is unlikely Congress would abolish the program entirely without offering a replacement that addresses the majority of the visa’s 14 programs.  Summer work programs may ultimately be revised to require U.S. employers either recruit U.S. workers, or agree to pay some sort of prevailing wage above and beyond minimum local, state or federal standards.Opposing Candidate’s Position:  Hillary Clinton’s position on immigration reform does not specifically address J-1 visas but her overall desire to initiate comprehensive immigration reform indicates a desire to address the pitfalls of plaguing the current J-1 visa classification.


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