Law Office of Leila Freijy PLLC
Immigration & Compliance Law 
AILA Post-Election Analysis
I listened to the AILA Post-Election Analysis call yesterday.  As anticipated, it is too early for any real information; however, there were a couple of points from yesterday's call that are worth sharing.
  • Campaign promise to overturn all of President Obama's Executive Actions.  In practice, it will be harder to overturn some Executive Actions (EAs) than others.  EAs that have been formalized through regulations, such as H-4 EADs will not be able to be overturned unilaterally.  They would have to be changed through the Administrative Procedures Act, which would take a while.
  • DACA relief.  One of President Obama's EAs resulted in Deferred Action for Childhood Arrivals (DACA) that permitted some young adults, who had been brought to the U.S. illegally by their parents, to apply for temporary employment authorization, which in turn also permitted them to obtain driver's licenses.  Unfortunately DACA was never codified by regulation and will likely be terminated by the new administration.  I know that some of my corporate clients have hired individuals with DACA employment authorization in the past.  Should DACA relief be rescinded, these employees would have to be terminated.
  • High Skilled Worker regulation.  In December 2015, the USCIS drafted a regulation that would provide certain benefits for employment-based foreign nationals and their employers.  The proposed regulation included expanded I-140 portability, limiting the revocation of I-140 petitions, introducing an I-140 EAD, and other benefits.  For more information on what was in the proposed regulation, please refer to my Immigration Alert from 01/11/2016, which is available on my web site.  Since its introduction, it has been moving through the regulation-making process, but has not yet been finalized and published.  If it cannot be published before the end of the current administration, it is unlikely that this regulation will be finalized under the new administration.
  • H-B program.  Look for additional restrictions to be implemented for the H-1B program and don't expect to see any new H-1B visa numbers anytime soon as these are established by Congress.  While it's not clear what the new restrictions would be, the following have been suggested in the past by Senator Grassley (R-IA) and others:  Requiring a minimum of a Level 2 Prevailing Wage for H-1B petitions and implementing additional recruiting measures to try to recruit U.S. workers when filing H-1B petitions.  Further, expect additional scrutiny of H-1B petitions by the USCIS.  It is unclear whether there will be any impact to H-1B cap cases for FY2018 that will be filed in April 2017. 
  • Background checks for visa processing at U.S. Consulates abroad.  While this issue was not raised on the call yesterday, I would anticipate that visa processing times will increase for citizens of Muslim countries who are applying for U.S. visas because lengthier background checks will likely be implemented.
Keep in mind that a lot of the anti-immigrant rhetoric from the campaign may not be implemented, either because it is physically impossible to do, the financial burden would be prohibitive, or a combination of the two.  So, while there are many "what if?" scenarios on everyone's mind, for now we should sit back and wait to see what actually materializes. 

When any real policy or procedural changes are announced, I will send out updated client alerts to keep you informed.

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If you have any questions or concerns about the information provided in this email, please don't hesitate to contact me.




Leila Freijy
Law Office of Leila Freijy PLLC