Dec 13 2016
On December 7, 2016, President-Elect Trump unofficially announced retired Marine General John Kelly as his nominee for the cabinet position of Secretary of the Department Homeland Security (DHS). Who is John Kelly and what does this mean for immigration in the U.S. for the next four years if he is confirmed as the new Secretary?
Who Is General John Kelly?
General John Kelly served in the Marines for over 40 years. He is a Gold-Star Father who lost his youngest son, Marine 1st Lt. Robert Kelly in 2010 while in Afghanistan during combat. General Kelly’s last post was serving as U.S. Southern Command in 2012 managing security threats from South and Central America. He’s also been at odds publicly with President Obama on the handling of Guantánamo Bay operations.
Based on his history of managing security threats for the U.S. Southern Command, General Kelly is described as vigilant and familiar with the practical threats posed from the south. He’s pursued strategies described as “soft power” rather than imposing overt military force on security threats like organized crime and drugs to protect the southern borders. It is this expertise from which General Kelly can draw if he heads up the DHS.
How Will General John Kelly Lead the DHS?
The good news is that reports indicate General Kelly has been in contact with the current Secretary of Homeland Security, Jeh Johnson. The bad news is if the General is confirmed, he’ll inherit a troubled agency comprised of seven different sub-agencies.
Customs and Border Protection
One of the promises Trump campaigned on was to build (or extend) a wall between the U.S. and Mexico. As Secretary, General Kelly will have to explore how this campaign promise can be accomplished. Which stretches of the U.S.-Mexico border will receive a “wall”? The Customs and Border Protection agency has been faced with sagging morale and additional walls without strategic interior enforcement efforts may be an exercise in futility.
Immigration and Customs Enforcement
In his acceptance for the nomination, General Kelly said
The American people voted in this election to stop terrorism, take back sovereignty at our borders, and put a stop to political correctness that for too long has dictated our approach to national security. I will tackle those issues with a seriousness of purpose and a deep respect for our laws and Constitution.
While it is premature to be speculating, it does beg the question where a Muslim Registry would fit into the constitutionality of the laws of this country. Does General Kelly and President-Elect Trump see eye-to-eye with an ethnic registry? When it comes to national security, would prosecutorial discretion have a place when Immigration and Customs Enforcement is out arresting individuals? Would our deserts be propagated with an influx of detention centers as a means to house the millions of detained immigrants? These are the issues General Kelly will inherit and must answer to voters and taxpayers.
Immigration Benefits and Practices
Perhaps, most curiously on our readers’ minds are how will existing immigration policies change, if at all, under Secretary Kelly?
If the General is focused on border security and national security, will he have time to review policies that improve avenues for entrepreneurship; make it easier for foreign students and scholars to obtain greencards; allow employers wider latitude to recruit foreign workers when they have difficulty filling those positions with U.S. workers; and what will become of the nearly one million DACA recipients who may be left unemployed if DACA is disbanded?
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Oct 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 Graduates
Candidate’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.
Candidate’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.
Candidate’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.
Candidate’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 Reform
Candidate’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.
Candidate’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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