How will a new US president affect business immigration?

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Whether Trump or Clinton becomes the next US president could significantly affect UK businesses

While immigration has been a hot topic in the 2016 presidential campaign, the candidates’ views on business-related immigration issues have received scant attention.

Analysis of campaign websites and public pronouncements gives some indication, however, of the business immigration policies each candidate might pursue if he or she becomes president.

Donald Trump’s signature immigration policy pledge is to build a wall along the US border with Mexico. He has also pledged to deport all 11 million people currently in the US without authorisation - though his most recent comments have focused on those who have committed crimes. These proposals have received the most attention, but Trump has also addressed immigration policies that would affect employers, including:

  • End president Obama’s executive actions granting temporary work authorisation and deportation protection to certain undocumented young people and their parents (DACA and DAPA)
  • Implement an entry/exit tracking system to ensure foreign visitors do not overstay their visas
  • Require all employers to use the E-Verify employment verification system
  • Require H-1B employers to pay H-1B workers a higher prevailing wage
  • Require employers to recruit for US workers before sponsoring a foreign worker for an H-1B visa
  • Implement a pause in issuing employment-based green cards and require employers to hire from the pool of unemployed US workers
  • Suspend immigration from Muslim countries by blocking the issuance of work visas to people from those countries

The proposals surrounding the H-1B visa category and employment-based green cards have the most potential to affect British businesses as these are the most common means by which British employees relocate. It is unclear how an intolerance of immigration from Muslim countries might expand to affect the Muslim employees of British businesses seeking to do business in the US.

Hillary Clinton has not discussed business immigration issues at any length in her campaign. Many analysts believe she is generally a supporter of legal business immigration, and this seems to have been borne out by some of her comments. She was a strong supporter of comprehensive immigration reform during her years as a senator and has made the following proposals:

  • Introduce (unspecified) comprehensive immigration reform legislation within her first 100 days as president. If similar to the comprehensive reform bill that passed the Senate in 2013 this might include a legalisation plan and path to citizenship for people in the US without authorisation, enhanced border security, mandatory E-Verify for all employers, new visa categories for lesser-skilled and agricultural workers, increasing the number of H-1B visas for professional workers, and increasing the number of employment-based green cards, including creation of a new category based on merit
  • Grant green cards automatically to advanced degree STEM graduates from US universities
  • Create a 'start-up visa' for foreign entrepreneurs who want to start a new business in the US
  • Continue and potentially expand DAPA and DACA

If comprehensive immigration reform were to be passed in a similar vein to that described above, British businesses could benefit from increasing availability of H-1B visas and employment-based green cards, especially businesses in STEM fields. The proposed 'start-up visa' for entrepreneurs does not offer much more in addition to the E treaty visas already available to British entrepreneurs, but could be a step in a positive direction. Clinton has made it clear that people seeking to enter the US will continue to be subject to stringent vetting to the extent needed to protect national security.

Regardless of what the candidates propose, any changes to business immigration laws will depend on what happens in Congress. There will likely be a renewed push for comprehensive immigration reform in 2017, at least in the Senate. Based on Congress’ lack of consensus on immigration in recent years it’s possible that not much will change, regardless of whether Trump or Clinton is inaugurated in 2017.

Claire Nilson is an associate, Thomas Jensen and Peter Yost partners, and Jolien Munsterhuis a paralegal at Faegre Baker Daniels

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