Waiting and watching

Companies urged to stay calm as new immigration policy unfolds

Published February 2, 2017 by Tim Loughran

Editor’s note: After this story went to press in mid-January, President Trump issued an executive order halting the flow of refugees to the U.S. from Syria indefinitely and suspending all refugee admissions for 120 days to allow more analysis to determine which countries pose the greatest threat. The order also implemented a temporary entry ban affecting citizens from Iraq, Iran, Syria, Yemen, Sudan, Libya and Somalia.The order sparked protests throughout the country.

Almost immediately after Donald J. Trump’s November victory over Hillary Clinton, the phones at Dustin Dyer’s immigration law offices in Richmond were “ringing off the hook,” he said. “My clients are very concerned. Scared is also a good word to describe how they are feeling.”

In public presentations and in private conversations with corporate executives, Richmond attorney Lakshmi Challa has been asked how likely President Trump is to follow through on campaign promises to sharply reduce immigration to the U.S. and harshly penalize companies employing undocumented immigrants.

“Since shortly after the elections, the fears were really heightened because of all the rhetoric during the campaign,” she said. “The words he said … had an amazing chilling effect, given [clients’] concerns about what a Trump [administration] would look like in terms of the immigration landscape.”

Trump launched his presidential campaign in mid-2015 pledging to build a wall along the entirety of the U.S.-Mexico border. Almost weekly throughout his run, he repeated his promise before cheering crowds to limit legal and illegal immigration in various ways to help U.S. workers get better jobs at higher wages.

Virginia Beach immigration attorneys Radlyn Mendoza and John Gardner said their clients —small employers and individuals — began calling with their concerns starting last spring, as Trump began to emerge as the favorite to win the GOP nomination. 

Companies are asking about reports that fewer work visas will be available. They also wonder if they should begin submitting all their employees’ work documentation to the national E-Verify database, ahead of a possible sweeping federal mandate for all American employers that has been favored by Trump and many of his advisers on immigration matters.

Interviewed before the presidential inauguration, many Virginia immigration lawyers said they have given their clients the same advice: Don’t panic.

Alone, say these attorneys, Trump can intensify enforcement of existing immigration laws and reverse completely, or in part, some of Obama’s most prominent executive orders related to immigration, like Deferred Action for Childhood Arrivals known by the acronym DACA.

But to alter U.S. immigration law and the nation’s deportation procedures in major ways, Trump still needs the Congress to pass legislation and the Supreme Court to reverse longstanding precedents protecting the constitutional due-process rights afforded everyone, including undocumented immigrants, residing in the U.S.    

“What I kept telling everyone is, truthfully, we don’t know what his administration is going to do,” Challa says, citing several post-election comments by Trump in which he softened or backed away slightly from some of his pledges.

Echoing that sentiment, Dyer said, “I’m telling [clients] that, at this point, I don’t think anyone should be making any plans long term based on speculation. Nothing is concrete at this point, nothing is put into place. Obviously, he has a pattern of saying things that are somewhat inflammatory and then later he sort of rolls back some of that same rhetoric; we’ve all seen that.”

Gardner added, “Generally speaking, we tell our clients that immigration change will come slowly.  Trump will likely start by simply increasing enforcement of existing immigration law…Bigger change will take time because it will require increased funding and manpower — both of which will need help from the Congress.”

Trump’s promises to build a wall to seal the nation’s entire border with Mexico and severely restrict immigration from certain countries where Islam is the dominant religion were attention-grabbing cornerstones of his run for the White House.

Much less publicized were his vows — made repeatedly in speeches, interviews and campaign position papers — to remove what he called the “magnet” of easy employment opportunities for foreign-born workers in the U.S. Trump and some of his most influential advisers on immigration — including attorney general nominee Jeff Sessions and the Federation for American Immigration Reform, (FAIR) — want much more focus on the U.S. workplace.

In addition to cutting the annual number of U.S. work visas, immigration policy critics such as FAIR also favor sharply raising minimum, legally required salary levels for certain visas as well as charging companies hiring workers from other countries much higher application fees and administrative costs.

Critics also want the Department of Homeland Security to ramp up the use of raids at companies hiring large numbers of immigrant workers and increase the financial penalties on managers and executives whenever undocumented workers are found.

In its November update of a 2014 report, the Pew Hispanic Center said “unauthorized” immigrant workers hold almost 20 percent of all agriculture jobs, 13 percent of construction jobs, 9 percent of hospitality jobs and 6 percent of manufacturing jobs across the country.  

Anthony Monioudis, with Woods Rogers PC in Roanoke, isn’t so sure increased workplace raids will be forthcoming or that stiffer fines on employers found to be paying undocumented workers will be enacted.

“I do not think we will see a return to worksite raids and immediate removals like that which was tried under the Bush administration” and de-emphasized under President Barack Obama, Monioudis said in an email interview. “The negative backlash with regard to the manner in which it was done … leaving families split and children without one or both parents, is something I do not think either political party wishes to be identified with.” 

Monioudis expects there may be some modest increases in workplace audits by Immigration and Customs Enforcement (ICE) officers as well as possible increase in fines against employers of undocumented workers.

“However, I suspect there is a very careful balancing act in place here that the new administration may need to consider,” he said.  If immigration policy changes result in too many raids and too heavy a fine schedule, “the Republican Party may end up alienating too many members of its base and that could spell political trouble and loss of political contributions.” 

To discourage employers from turning a blind eye to fraudulent or stolen identity documents often used by undocumented workers, Trump, Sessions and groups like FAIR have indicated they favor having Congress mandate that all U.S. companies — from Fortune 500 giants to small restaurants, landscapers and roofing companies — use the E-Verify system to confirm the legal immigration status of everyone they hire.

Calls to make all U.S. companies screen new employees through E-Verify have been made to Congress many times since the original version of the application was launched in 1997, usually as part of larger legislation to reform the nation’s immigration system.

But those proposals died after companies said obligatory use of E-Verify would be too expensive for small employers, and civil-rights organizations claimed the tool wasn’t sophisticated enough to protect workers’ rights to privacy and due process.  

Now, with the House, Senate and the White House all under Republican control, universal use of E-Verify may stand a better chance of becoming law.