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Friday, November 18, 2016

What to Expect Immigration Wise from President Trump and AG Sessions?

By Thomas Eden

The pick of Senator Jeff Sessions as Attorney General, and his acceptance, should be a strong law and order signal to all employers. Here is what employers can expect Immigration Wise.

Border Wall: there are recent indications that at least part of the border wall might become a border fence, a possibility that Trump mentioned in his recent 60 Minutes family interview.

Mass Deportations: Trump will deport up to 3 million criminals living in the U.S. illegally immediately upon assuming office.

Mandatory Detention: Trump has promised mandatory detention of "anyone who illegally crosses the border."

Comprehensive Immigration Reform: Kris Kobach (who drafted Alabama’s Immigration Reform Act) is to advise Trump’s transition team on immigration policy so it is safe to assume that there will be no comprehensive effort during the Trump presidency to legalize the population of people living in the country illegally. However, a robust guest worker program is highly likely.

NAFTA: If in fact Trump chooses to withdraw as opposed to renegotiating, TN Visa status for Canadians and Mexicans would cease to exist.

Employment-Based Immigration: Trump's 10-point plan is to "reform legal immigration to serve the best interests of America and its workers, keeping immigration levels within historic norms." However, we can glean a few morsels from the recent news:

H-1B: The H-1B current annual quota of 85,000 is vastly insufficient to meet current demand by U.S. businesses. Trump has expressed support for skilled, legal immigration, but he has proposed a wage floor for the H-1B category, and a requirement that employers show that they have not been able to find U.S. workers before sponsoring foreign workers for H-1B positions.

Optional Practical Training (OPT): Sen. Sessions last year introduced a bill eliminating OPT (the 12-month period of work authorization available after completion of a U.S. degree, followed by an additional 24 months for some science, technology, engineering and math (STEM) graduates).

Enforcement: employers should expect a sharp increase in workplace enforcement (Workplace Raids and I-9 Audits) during the Trump administration. This will include worksite raids by U.S. Immigration and Customs Enforcement to identify, detain and deport those without work authorization; audits of I-9 files by ICE to confirm corporate compliance with employment verification rules; visits by the Fraud Detection and National Security (FDNS) Directorate at U.S. Citizenship and Immigration Services to confirm that companies are adhering to the requirements of nonimmigrant visa programs such as the H-1B and L-1; and site visits by the U.S. Department of State to confirm compliance with J-1 program regulations.

E-Verify and Biometrics: E-Verify, the federal government's electronic employment eligibility verification system, and biometric data to track immigrants. Expect more of such electronic enforcement initiatives during the Trump Presidency.

Common Sense Counsel: stay informed. However, ramping up now your Form I-9 Auditing, Immigration Policy update and Supervisor Training will be time and money well spent.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. Tommy can be contacted at or 334-246-2901. Blog at