November 9, 2016
WHAT DOES A TRUMP VICTORY MEAN FOR BUSINESS IMMIGRATION?
By: Jonathan A. Grode
The results from the U.S. presidential election are in, and Donald Trump has eked out an electoral
college victory that will send him to the White House. He will assume the Presidency together with a
Republican-controlled House of Representatives and Senate that could be poised to enact immigration
reforms. Clients understandably are wondering what changes might be in store for the current business
immigration status quo?
I give my take below. I must preface my comments with an important caveat: both those on the Left and
the Right have expressed difficulty in determining his stance on immigration and many other topics. He
has been criticized for changing his positions on many policies throughout his public life. Further,
significant media attention has been devoted to his approach to illegal immigration, such as his promises
to end sanctuary cities and to wall off the U.S.-Mexico border. There has been relatively much less
attention paid to his plans to reforming the legal immigration system. His campaign web site offers few
specifics on the topic. It is therefore quite difficult — some may say impossible — to accurately predict
what policies he may endorse to be enacted through Congress or through the Regulatory rulemaking
process.
That being said, these are the major policy platforms I expect from a Trump Administration that could
affect business immigration clients:





Mandatory E-Verify. At present, there is no federal requirement that a company use E-Verify
with respect to its employees, except in certain limited circumstances. A patchwork of states
require E-Verify use under their own laws. Trump has stated that it should be expanded across
the U.S.
Companies should further anticipate site investigations and I-9 Employment Eligibility
Verification audits. Taking measured steps at this time to ensure compliance with existing rules
and regulations is recommended.
Reforming the H-1B Visa. Trump’s website cited above references reforming legal immigration
to “put American workers first.” A now-deleted press release explained that “The H-1B program
is neither high-skilled nor immigration: these are temporary foreign workers, imported from
abroad, for the explicit purpose of substituting for American workers at lower pay […] I will end
forever the use of the H-1B as a cheap labor program, and institute an absolute requirement to
hire American workers first for every visa and immigration program. No exceptions.
Policy changes could therefore include higher prevailing wages, a labor market test, or both.
Curtailing Executive Action. It is no secret that Trump seeks to abandon President Obama’s
actions regarding Deferred Action for Childhood Arrivals (DACA). Presumably, these current
lawful workers would thus lose employment authorization.

Changes to NAFTA. Trump has stated that he will renegotiate or withdraw from the North
American Free Trade Agreement. This could lead to changes of the current TN visa regime, as
well as L-1 border adjudications for Canadian nationals.
It remains to be seen whether President-Elect Trump will subscribe to any kind of comprehensive
immigration reform, such as that which passed the Senate in 2013. A prospective Trump Administration
presents many unknowns, especially with regard to changes in immigration policy.
That said, we do not anticipate any changes in immigration law or policy until at least his inauguration in
January. Further, at this time we do not anticipate any significant changes to intracompany transferee
visas (L-1) or treaty visas after the inauguration, given their longstanding presence in the U.S.
immigration system.
November 17, 2016
What Happens When There Is No NAFTA in 2017?
By: Tim Golden
The 2016 U.S. election brought changes that were predicted by few. Now the future of U.S. immigration
will be left to unpredictable mechanics of U.S. policy set to begin after president-elect Trump’s
inauguration on January 20, 2017. Nonetheless, we offer broad practical effects of a potential U.S.
withdrawal from the North American Free Trade Agreement (NAFTA). The one certainty is that for over
twenty years NAFTA has become interwoven within the three economies. NAFTA has deep bonds
throughout the three countries including shared labor and trade. NAFTA is the operational framework
for one of the largest single markets in the world, and it won’t be easily interrupted.
The Trump campaign has discussed interest in renegotiation not elimination of NAFTA. As such, we will
be able to monitor those potential negotiations, and advise on potential changes as they progress.
Temporary tariffs or targeting of industries have a long history as political negotiation tactics. While U.S.
withdrawal from NAFTA is the extreme, several facilities for entry into the U.S. for Canadian and
Mexican nationals would be affected:



Elimination of the professional work-authorized category TN1 and TN2 for Canadians and
Mexicans respectively. These professional positions are a key benefit of NAFTA, allowing
degreed and professional employees to work across all three countries;
Visa exempt status for Canadian nationals would potentially be withdrawn through the
elimination of NAFTA. Currently Canadians are visa exempt for a variety of temporary U.S.
statuses including: schooling, employment, and recreation. This allows immediate access upon
presentation of application materials, proof of status, and a passport. NAFTA is the framework
under which this privilege is structured;
In-person processing of work authorization will likely come to an end. This convenience enjoyed
by Canadian applicants prior to entry to the U.S. is also part of NAFTA. TN1 applications along
with intracompany transfers for international organizations (L-1) may currently be submitted
and processed in-person. Approval and work authorization is then granted by U.S. Customs and
Border Protection personnel. It provides a cost-effective immediacy valued by U.S. and Canadian
companies. NAFTA makes that possible.
Other non-NAFTA solutions are less convenient for Mexicans and Canadians, and those solutions will
probably require a preliminary processing of a travel visa to accompany status. In essence, if the U.S.
withdraws from NAFTA, the former NAFTA partners would assume similar status to other international
travelers to the U.S. As discussed supra, international transferees for a commonly-owned company
would remain an eligible classification for Canadians and Mexicans, TN1 and TN2 applicants could find
some equivalency in the H-1B program, and the investor/trade programs (E visa) are tied to NAFTA but
would likely be reconfigured to each country. There are limitations amongst those solutions and the
withdrawal of NAFTA would undoubtedly do damage to the relationship amongst the three countries.
More specifically, the E program is a good solution potentially for Canadian-owned and Mexican-owned
companies that seek to send Canadians and Mexicans respectively, but it involves preliminary
infrastructure with the U.S. Consular Services. In addition, if H-1B is the only option, it is important to
know that due to oversubscription, the H-1B petitions by employer need to be developed in early 2017
for a critical filing date of April 1, 2017.
Overall, speculation is what we are left with after some campaign promises. The prospect of country-tocountry, non-NAFTA, trade agreements on an individual basis amongst the three countries is a possibility
left to the unpredictable means of legislation. We will see very soon what the future holds for NAFTA in
2017, and we are here to provide strategy and guidance as that future unfolds.
November 18, 2016
Why the E-2 Visa Will Become Critical in the Trump Years
By: Matthew Galati
We are continuing our analysis of what to expect for business immigration from the Trump
Administration. Previously, Jonathan Grode discussed what to expect with regard to H-1Bs and Worksite
Compliance. My colleague Tim Golden followed up with an excellent article discussing how the Trump
Administration’s clear signal that it is willing to walk away from the North American Free Trade Act
(NAFTA) would affect TN Visas if carried out. To briefly summarize their analysis: we are pessimistic that
the H-1B and/or TN visas will be as attractive or viable as they are under the present laws and policies if
Trump’s campaign rhetoric becomes immigration law or policy.
So the question now remains: How will the Trump Administration approach investor visas? We will
publish a separate article regarding EB-5. The immigrant investor visa presents its own complicated
analysis; the least of which is that the Regional Center program will need an extension approximately six
weeks before Trump takes office and likely another one just a few months after inauguration. For now,
we will give our readers our thoughts regarding the E-2 Nonimmigrant Treaty Investor Visa. We hold
similar thoughts regarding the E-1 Treaty Trader Visa, although that is not used as frequently among our
clientele.
Let’s start with a history lesson. Believe it or not, the E-2 Visa’s roots are deeper than those of the
immigration laws themselves. Traditionally, the E-2 arises out of a “Treaty of Friendship, Commerce and
Navigation” between the U.S. and a given foreign country, explaining why the visa is available to
nationals of some countries but not others. The oldest such treaty that presently gives rise to an E-2 Visa
is that signed with the United Kingdom on July 3, 1815. For historical perspective, this treaty was ratified
merely several months after the Treaty of Ghent which ended the War of 1812. Moreover, restrictions
on the U.S.’ historical Open Door Policy did not come about until the Page Act of 1875 (focused on the
exclusion of convicts and prostitutes) and the shameful Chinese Exclusion Act, enacted seven years later.
Indeed, the makings of a comprehensive immigration scheme did not arise until the Immigration Act of
1924, culminating in the McCarran Walter Act of 1952, the “grandfather” to the current INA.
Why is this historical context so important? It’s necessary to illustrate our opinion that so long as there
will be international investment with treaty countries, there will E-2 Visas enabling oversight of those
investments. This unique history of the visa and the mechanisms in which countries may qualify make a
significant distinction in how an administration would restrict its use. For instance, unlike the H-1B
which could become crippled by labor market tests or prohibitively high prevailing wages, these visas
have no such statutory requirement designed to protect U.S. workers. Rather, the E-2 Visa leverages
international law enabling bilateral investment and entrepreneurship – the pain felt by E-2 companies in
the U.S. could similarly be felt by American companies operating abroad.
Consider the different political optics as well. The conventional wisdom is Donald Trump was able to
resonate well with “Rust Belt” voters in part by railing against NAFTA. An anti-NAFTA position was low-
hanging fruit for Trump given that it was signed into law by former President Clinton and many within
his electoral base have railed against perceived U.S. trade deficits since its inception. Importantly, should
NAFTA fall, the TN Visa scheme would as well, absent some kind of renegotiation (an E-2 reconfiguration
would be needed for Canadian and Mexican entities, but the visa scheme would likely remain viable).
Consider, however, that the E-2 Visa requires investment into the United States which results in the
creation of a non-marginal (e.g. American-job creating) business. The political optics viewed this way –
shutting down a visa scheme that creates jobs for Americans through foreign investment – make the E-2
relatively more appealing, even to a protectionist demographic. While across-the-board repudiation of
international investment and trade treaties is theoretically possible, it would cost significantly more
political capital and lack the symbolic victory for Trump that a NAFTA cancellation or renegotiation
would bring. We think a worldwide gutting of the E-2 is much less likely, if not out of the question.
We cannot stress enough that our analysis at this juncture involves a high degree of crystal-ball gazing
uncertainty. Understanding this point as a caveat, it is our opinion that status quo of the E-2 visa is more
likely to be upheld than those of the H-1B or TN Visas. We think that investors should accordingly
consider such points when weighing establishment of an E-qualifying entity and that employers that
have the option of changing a foreign employee’s status to E-1 or E-2 explore such possibilities in the
coming months. The E-2 Visa will remain critical for the establishment, direction, and staffing of foreign
businesses operating in the U.S. even amidst such unpredictability.
November 22, 2016
What Does Trump’s Election Mean for EB-5? Actually, Probably Not That Much
By: Matthew Galati
In continuing our post-election series, we come to the literal million-dollar question: What effect will a
Trump Administration have on the EB-5 Immigrant Investor Visa? Some stakeholders and pundits have
claimed that under the incoming administration, the Program will thrive. Some industry colleagues in
private discussions have expressed great pessimism that Trump will take a more restrictionist policy
given the dominance of Chinese nationals in the program and his tough talk on China. We respectfully
disagree with both.
Our political crystal ball takes a more moderate approach: the EB-5 program will likely not experience
great changes for the positive or the negative because of Trump. Indeed, changes to DACA, NAFTA, or
the H-1B might be directly correlated with the election outcome. EB-5 won’t be. If there will be change,
we don’t think such changes will be a result of the Trump Administration.
Here’s why:

EB-5’s problems are largely legislative, and they require legislative solutions. Congress must
focus its attention on passing a budget and hopefully thereby extending the Regional Center
Program. As we have discussed previously, the RC Program is scheduled to sunset on Dec. 9, and
some legislators are eyeing a temporary extension to March 31, 2017. Whether this extension
shall pass will be decided even before the Electoral College meets to cement Trump’s victory.
Stakeholders, however, have been advocating for additional legislative solutions for years. These
include in passing reforms similar to those proposed in the Integrity Act, more visas to be
awarded to investors and their families, and mandating processing times to ensure
predictability. Given our Constitutional separation of powers, there is not relatively much Trump
could do to improve the program without legislative amendments, and there is no present
evidence that he has any inclination to push for legislative EB-5 reform.

Opinions on EB-5 do not cut across traditional political party lines. Trump will be a Republican
President, working with a Republican-controlled Senate and House. He may be able to pass
significant legislation regarding immigration issues such as mandatory E-Verify usage, given the
like-minded attitude on the Right side of the political aisle. His attitudes on EB-5 are not known
(even though he has used the program in his own business affairs). In any event, EB-5 is unlikely
to cleave along party lines.
The upcoming Senate is instructive in this regard. Judiciary Committee Chair Chuck Grassley (RIA) has been highly critical the Program. So too has been the incoming Ranking Member Dianne
Feinstein (D-CA). Charles Schumer (D-NY) has been a staunch defender of EB-5, and he will
become the Senate Minority Leader. Jeff Flake (R-AZ) and John Cornyn (R-TX) will remain on
Judiciary and likely continue to be pro-EB-5.
Party affiliation, in this particular instance, does not appear to be terribly relevant. In many
respects, the political EB-5 status quo has not changed as a result of the elections. Again, we’ve
seen no signal that the future White House will leverage the “Bully Pulpit” and take a stance on
EB-5.

The biggest problem facing the EB-5 industry is Chinese retrogression, and Trump appears to
be opposed to awarding more immigrant visas. The availability of EB-5 visas presents a major
challenge for the program, given that PRC-native investors and their families face a multi-year
wait to assume conditional residency because of retrogression. Although the program has been
historically underutilized, 10,000 visas for investors and their families simply is not sufficient to
meet present demand. More visas could be allocated, either through increased legislative
allocation or perhaps through administrative action that counted only the principal investor
towards the preference quota.
Such reforms however appear unlikely to find support from a Trump Administration. His 10point plan promises to “keep[] immigration levels within historic norms,” an ambiguous
platform that appears to be a nod to a more restrictionist policy. It may be a commitment to the
status quo. How it will play out in the EB-5 realm remains to be seen. However, it appears
reasonably clear that Trump is no fan of creating more visas, at least in the general sense.

A comprehensive revision to the EB-5 regulations might be one of the last achievements of a
largely pro-EB-5 Obama Administration. Since President Obama took office in January 2009, the
EB-5 program has experienced a renaissance. Some may argue whether this was due to
economic conditions, or savvy businesspeople that saw potential in a historically underutilized
program. We think a significant amount of credit is due to former USCIS head Alejandro
Mayorkas, who leveraged considerable agency resources to commence stakeholder calls
resulting in increased participation, transparency, and the crafting of comprehensive policy.
Obama himself has addressed Select USA in an effort to augment foreign investment.
This past week, the Department of Homeland Security updated its Fall Unified Agenda to signal that EB-5
regulatory changes are anticipated to be proposed in January 2017. It remains to be seen whether these
draft regulations will help the Program. Notably, however, the “Anticipated Benefits” of the anticipated
rule reference key new benefits such as priority date retention, streamlining process, and improved
adjudication times. Perhaps such revisions to the regulations, proposed by Obama and implemented by
Trump, would help the program to thrive. We will keep you posted.
November 22, 2016
The Future of Marriage Equality in the Wake of the Trump Election
By: Calyn Arnold
Many in the LGBTQ community are understandably worried about the future of gay rights in the wake of
Donald Trump’s victory in the presidential election. However, while the Trump Administration is poised
to challenge measures built over the past years to protect the rights of LGBTQ people, we are of the
present opinion that foreclosing immigration benefits to the LGBTQ community is highly unlikely.
A mountain of case law stands in the way of overturning marriage equality and the subsequent
immigration benefits to same-sex married couples. Two Supreme Court decisions protect the right to
marry. The Supreme Court recognized that marriage is a Constitutional right that extends to same-sex
couples in 2015, in Obergefell v. Hodges. Prior to that in 2013, the Court held that the section of the
Defense of Marriage Act (DOMA) denying federal benefits to same-sex married couples was
unconstitutional, in United States v. Windsor. Shortly after Windsor, the Board of Immigration Appeals
(BIA) issued a precedent decision called Matter of Zeleniak, which held that Windsor is to be applied to
non-citizen same-sex spouses seeking immigration benefits. This case law, plus a change in public
opinion in favor of marriage equality, makes reversing such hard-fought gains an extremely difficult task.
Because of these decisions, no president will ever have the executive authority to unilaterally erase
immigration benefits to gay couples. To change the law, the Court itself would have to agree to rehear
the issue, and then change their prior ruling. It is unlikely the Supreme Court will decide to re-hear the
matter head-on, even if a legal avenue permitting the Court to retake up the matter presented itself. It
is just as unlikely the Court would change their own precedent, especially as all five justices who voted
to acknowledge this constitutional right are still on the bench. Furthermore, Donald Trump even
admitted in his recent interview with 60 minutes that marriage equality “was already settled.”
President-elect Trump’s future immigration actions are particularly difficult to predict, as we have
reported previously. However, the binding precedents of the Supreme Court and BIA to acknowledge
and uphold the right to marry, and the extension of those benefits to married couples in the LGBTQ
community will likely hold, regardless of what else may change.
January 30, 2017
Client Alert: Recapping Trump’s Immigration-Related Executive Orders
This past week, the new Trump Administration issued three executive orders relating to immigration,
with more potentially on the horizon that could affect our clients. We are able to confirm that Trump
has issued orders aimed at tightening illegal entry, increasing removal priorities, and a ban on travel and
visas for certain nationals.
BAN ON TRAVEL, VISAS, CEASING REFUGEE PROCESSING
Late Friday afternoon, Trump signed an executive order, "Protecting the Nation from Foreign Terrorist
Entry into the United States." The order is already subject to litigation and several district courts have
issued stays. What appears to be in practical effect at the time of this writing, however, is the following:





Most visa issuance and admissions to nationals of Iran, Iraq, Syria, Sudan, Libya, Somalia, and
Yemen is to be suspended for least 90 days. Following some initial days’ confusion, on January
29th, DHS Secretary John Kelly clarified that Lawful Permanent Residents will continue to be
able to enter the U.S.;
o Please note: DHS has clarified that the order applies to those individuals “traveling on”
passports from banned countries. However, at the time of this writing there appears to
be an ambiguity at U.S. ports and Pre-Clearance locations as to whether this ban applies
to Dual Nationals. Nationals of these affected countries, even if holding other passports,
are strongly encouraged to contact us prior to making travel into the U.S. or departures.
New uniform screening standards are to be implemented. The exact contours of new
procedures are not known at this time;
The U.S. Refugee Admissions Program (USRAP) is suspended for 120 days, with the total number
of refugee admissions for the remainder of Fiscal Year 2017 decreased to 50,000;
Consulates will suspend the visa interview waiver program. Contrary to media reports, this is not
a suspension of the Visa Waiver Program (known by many as VWP or ESTA), which remains in
effect;
The Department of State will review of visa reciprocity provisions.
We are receiving multiple and varying reports regarding the implementation of this order from our
government contacts and colleagues overseas. Affected individuals inside and outside the United States
should contact our offices prior to planning any travel and may wish to reconsider any plans to depart
internationally.
ADDITIONAL EXECUTIVE ORDERS
Earlier in the week, Trump has issued executive orders regarding the following:







Prioritizing removal of individuals who have been convicted of crimes, charged with crimes,
committed acts that constitute crimes, or committed misrepresentations for public benefits;
Enabling local law enforcement officers the power to perform the function of federal
immigration offers with respect to investigation, apprehension, and detention;
Threatening the withholding of funds for so-called “Sanctuary Cities”;
Prosecuting criminal immigration offenses;
Commencing the building of a physical wall between the U.S. and Mexico;
Constructing additional detention facilities near the Southern border;
Hiring additional immigration agents.
Please contact us if you have any questions relating to these executive orders and their impact to your
family or operations.
February 6, 2017
Executive Order Reversed… For Now
President Trump’s executive order, which restricted entry for travelers from seven Muslim-majority
countries (Iran, Iraq, Libya, Syria, Yemen, Sudan and Somalia) has been halted by a district judge in
Washington State on Friday February 3, 2017. The 9th Circuit Court of Appeals has also rejected the
Trump Administration's plea to continue the implementation and enforcement of the President's order.
Under the executive order, individuals with passports from these countries, including those with valid
visas, were not permitted to enter into the United States. President Trump’s executive order also
temporarily banned refugees from around the world, and blocked Syrian refugees indefinitely.
In accordance with the judge's ruling, the Department of Homeland Security has suspended any and all
actions implementing the affected sections of the executive order entitled. This includes actions to
suspend passenger system rules that flag travelers for operational action subject to the Executive Order.
Immigration policy will now return to the standards determined prior to the Executive Order, although
review processes will be heightened.
We will continue to monitor the changes and provide updates as they come available.
March 7, 2017
Trump Issues New ‘Travel Ban’ Executive Order; Effective March 16, 2017
On March 6, 2017, President Trump issued an updated executive order “Protecting The Nation From
Foreign Terrorist Entry Into The United States.” Although similar in many material respects to the
original order issued on January 27 (Executive Order 13769), this updated version appears to be
narrower in focus and drafted with greater clarity following previous litigation. Further, unlike the
previous order, it will not take effect immediately but will go into effect on March 16, 2017. Some key
provisions are as follows:
TRAVEL BAN
The new order suspends entry of nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen for 90
days. The original order had included Iraq in this list, however, the new order recognizes that “Iraq
presents a special case” and will be “subject to additional scrutiny” given the country’s involvement in
fighting ISIS and role with the U.S. military.
This suspension is subject to the following applicability and exceptions:


The travel ban applies only to foreign nationals of the designated countries who 1) are outside
the United States on the effective date; 2) did not have a valid visa at 5:00 p.m., Eastern
Standard Time on January 27, 2017; and 3) do not have a valid visa on the effective date.
The order does not apply to:
o Lawful permanent residents;
o Any foreign national who is admitted to or paroled into the United States on or after the
effective date;
o Individuals who have travel documents other than visas, valid on the effective date of
the order or issued on any date thereafter, such as an advance parole document;
o Dual nationals travelling on a passport of a nonaffected country;
o Certain diplomatic visas; and
o Individuals granted asylum; any refugee who has already been admitted to the United
States; or any individual who has been granted withholding of removal, advance parole,
or protection under the Convention Against Torture.
Further, case-by-case waivers are available. The executive order includes appropriate scenarios for a
waiver including:



Those seeking readmission to the U.S. for long-term activities such as employment or studies
and that readmission would impair such activities;
Individuals with significant contacts with the U.S., but the individual is outside the country on
the effective date due to work, study, or other lawful activities;
Those seeking to enter the U.S. for “significant business or professional obligations” and the
denial of entry during the suspension period would impair such obligations;






Foreign nationals seeking to enter to visit or reside with close family members that are U.S.
Citizens, Green Card Holders, or admitted in nonimmigrant status and that denial of entry during
the suspension period would cause “undue hardship”;
Infants, young children, adoptees, those needing medical care and others “whose entry is
otherwise justified by the special circumstances of the case”;
Former U.S. government employees, with proof of such employment;
Those traveling for purposes related to an international organization designated under the
International Organizations Immunities Act (IOIA), or traveling to conduct business on behalf of
an international organization not designated under the IOIA;
Permanent residents of Canada that apply for a visa at a location within Canada; or
United States Government-sponsored exchange visitors.
UNIFORM SCREENING AND VETTING PROGRAMS
The Department of State, Attorney General, Department of Homeland Security, and the Director of
National Intelligence are to implement a program, as part of the process for adjudications, to identify
individuals who seek to enter the United States “on a fraudulent basis, who support terrorism, violent
extremism, acts of violence toward any group or class of people within the United States, or who
present a risk of causing harm subsequent to their entry.”
REFUGEE SUSPENSIONS AND LIMITATIONS
The U.S. Refugee Admissions Program is to again be suspended for 120 days while various government
agencies review screening and current procedures. Exceptions exist where the Secretary of State and
the Secretary of Homeland Security jointly determine to admit as refugees on a case-by-case basis, in
their discretion, but only so long as they determine that the entry of such individuals as refugees is in
the national interest and does not pose a threat to the security or welfare of the United States. Further,
only 50,000 refugees may be admitted in Fiscal Year 2017.
VISA INTERVIEW WAIVER PROGRAM SUSPENSION
All foreign nationals to be traveling on visas, except for some in certain diplomatic statuses, must
participate in a visa interview. Note: This provision does NOT affect the Visa Waiver Program itself or
visa-free admissions to Canadians, Bermudians, and certain Bahamian travelers.
NO REVOCATIONS
Importantly, visas issued before the effective date of the new order will not be revoked. All individuals
holding visas marked revoked or cancelled as a result of the previous order shall be entitled to a travel
document confirming that the individual is permitted to travel to the United States and seek entry.
If you have any questions regarding the applicability of this executive order, please contact us today.