As an immigration attorney, here is my take on Trump Immigration Plan for the 2020 Election, with five predictions.
It is now mid-May 2020 and we are six months out from the election for President of the United States, in which Donald Trump hopes to win a second term in office.
We are also in the middle of the COVID-19 crisis, which has ravaged the country with over 1.3 million reported cases and over 80,000 deaths recorded so far.
The President currently has massive issues with a sky-high unemployment rate that recently passed 20% and over 26 million jobs lost, combined with a further 33 million Americans and residents filing for unemployment.
Trump is in a debate with top doctors about the timing of reopening the country. Reopen too soon and we risk facing a second wave of COVID-19 cases that may be even larger than the initial outbreak. However, keeping the United States closed for business could deliver equally dire results.
Trump’s critics say his leadership was lacking in firing pandemic response teams around the globe and calling it a “hoax” instead of stocking up on tests and equipment and preparing for the virus to hit U.S. shores.
On the other hand, Trump and his supporters claim he did a great job in locking down the borders, initially from China then later Iran and Europe. The political strategy seems to have been to blame China for the virus and Europe for its failure to contain it.
It is against this backdrop that the Trump Immigration Plan for the 2020 Election appears to be coming into focus.
We will look at five things to provide a road map of how President Trump will use Immigration as a political tool in his campaign for reelection.
1. Executive Orders
In Proclamation 9994 of March 13, 2020, the President declared that the COVID–19 outbreak in the United States constituted a national emergency, beginning March 1, 2020.
Then began a series of travel bans. The borders with Canada and Mexico were closed from March 21. Further bans have affected China, Iran, Europe (Schengen region) and the UK and Ireland.
We then saw the “Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak” on April 22, 2020. We believe that this proclamation offers a template for President Trump’s likely strategy going forward.
This proclamation came on the heels of a tweet that stated the President was going to prohibit immigration into the United States. While this may sound like it has global reach, in terms of the law, what Trump can actually do will be pretty limited.
The following day the President held a televised briefing where he discussed his ideas. On the next day (April 22nd), he came out with the proclamation.
Prohibits the filing of green card applications for certain types of business visas:
- EB-1 family, i.e., Extraordinary Ability, Outstanding Researcher, and the Multinational Executives.
- The EB-2, except for national interest waivers.
- EB-3, which is the Perm process for skilled and educated workers.
- Certain EB-4 visas, with some exceptions.
The EB-5 green card was not prohibited at this time. Also note that the proclamation only applied to those filing applications from outside of the United States. It did not prohibit visitors or non-resident visa holders from filing from within the country.
Also covered by the President’s proclamation was family-based visas, addressing the so-called “chain migration” issue, which has been a key focus for the present Administration (even though Melania Trump used exactly that approach when she filed applications for her own parents).
Green card applications could continue to be filed from outside of the country if they were for marriage to a U.S. citizen. Also excluded were any non-immigrant visas. The question is why they were not addressed.
From an immigration lawyer’s perspective, the term “immigration” in law does not apply to any foreigner, but strictly applies only to filing of applications for green cards (resident visas).
From a political perspective, we should consider the primary issue of the day, which is how to deflect criticism of the Administration’s handling of the COVID-19 pandemic. The preferred strategy seems to be to blame the Chinese and that seems to have been well received among Trump’s natural support base.
There was also a very interesting nugget of information in the proclamation. This said that in 30 days there would be a report presented to the President from three agencies that would address the impact of non-immigrant visa holders on U.S. workers.
Around a week ago, a number of Congressional leaders (mostly Republicans) came to the President with a wish list of immigration issues that they would like to see made tougher. These moves would naturally be popular with Trump’s political base, so it makes sense politically, particularly in times of increased unemployment.
We will now have to wait and see what emerges in the next 30-60 days, particularly in terms of executive orders. What I expect to see is a series of announcements about how the President will protect American workers, prevent immigrants from “taking their jobs”, even those workers that the country really needs!
The fact is that we historically actually have a negative unemployment rate across a number of industries, not counting the COVID-19 scenario. The tech industry is heavily dependent on foreign immigrants, as is the education sector with students on visas, as well as OPT. The U.S. economy continues to depend on temporary immigrants in a number of key areas, and this will be an important factor in the speed of any economic recovery.
2. Impact on Swing States
The second key factor to look out for when watching the Trump immigration strategy for 2020 will be its impact on swing states. How will states such as Michigan. Pennsylvania, Florida and Texas respond to the coming announcements? Will they move more towards Trump, or away towards Joe Biden?
3. Visas that will be impacted
We already know that green cards for most employment-related permanent residency visas filed outside of the country, and family-based green cards will on hold for now. Applications for green cards for marriage to a U.S. citizen will continue to be received.
4. Visas that might be impacted
This is the critical question. When the non-immigrant visas were excluded from the April 22nd announcement, this may not have been constrained by the limit of the President’s authority. It may also have been a result of massive lobbying on behalf of U.S. companies making it clear how important the flow of the best-qualified new hires was to their operations – and as a result, to the nation’s economy.
Anti-immigration rhetoric has long been a feature of Trump’s campaigning strategy, which is unsurprising considering the focus on his natural support base.
But we have also seen more recently the pandemic be used to strengthen the restrictions on immigration. This has been part of the plan that Stephen Miller has been advocating since his first days when he was paired up with Bannon.
In addition, pay attention to people like Sen. Chuck Grassley from Iowa, who has had an anti-immigration bent against the EB-5 investor green card, the L-1 (intra-company transfer of executives), and the H-1B (specialty occupation) since he started introducing legislation to revise those key visas going back to 2010. In response, President Trump appointed Chiefs of Staff to sit in key positions and start implementing tougher legislation policies for those key merit-based visas.
That does not mean we expect to see those visas impacted. The H-1B is likely to be the crux. The L-1 visa ought to be safe, and the EB-5 was specifically exempted from the original proclamation, which suggests it would be hard to include it in any new restrictive move.
The EB-5 makes particular sense at a time when the country is borrowing heavily from foreign banks. The EB-5 green card is for foreign investors who bring $900k-$1.8M in investment and creating a minimum of ten new jobs for Americans. It would be very unlikely for the Administration to toughen up rules on the EB-5.
Visas that won’t be impacted
As discussed, we do not expect the L-1 to be affected. Likewise, the E-1 for treaty traders and the E-2 for treaty investors are unlikely to see tougher measures. I also do not expect to see the J-1 (cultural or education exchange) visa to be squeezed.