An Employer’s Guide to Immigration Policy in a Trump Administration

December 5, 2016 | Corporate

After months of uncertainty during the campaign season, employers finally know that Donald Trump will be the next President of the United States. The Trump administration, which takes power on January 20, 2017, will likely bring fundamental changes to immigration law and policy.  Although many of the details remain uncertain, employers can take action now to prepare.  Employers who act now and remain up to date on current developments will have a significant competitive advantage. 

Work Authorization (I-9 Compliance)

President-elect Trump has promised to repeal the Deferred Action for Childhood Arrivals (DACA) program, which provides work authorization for almost 1 million undocumented individuals who came to the United States as children. Repealing DACA will cause almost a million workers currently in the labor force to have work authorization that cannot be renewed.  An employer that does not have standardized procedures to re-verify the work authorization of existing employees risks employing individuals without work authorization.  Given that the new administration will likely increase enforcement, employers should be particularly vigilant to avoid employing individuals without work authorization.

Here’s what an employer can do to prepare:

  1. Review internal procedures to re-verify employment authorization. Remember that you cannot re-verify the employment authorization of all employees. Re-verifying the employment authorization of all employees could subject employers to liability in a document abuse lawsuit. Speak to your attorney or human resources professional before reverifying.
  2. Conduct an internal audit. Select employee files at random to determine if human resource professionals have properly verified employment authorization and documented the need for re-verification.
  3. Large employers should consider purchasing software to track employees who require re-verification of work authorization

Optional Practical Training

Immigration laws provide work authorization for optional practical training (OPT) to foreign national students who graduate from a United States school. Students are ordinarily eligible for 12 months of post-graduation OPT.  Students with degrees in Science, Technology, Engineering, and Math (STEM) can receive work authorization for an additional 24 months.  Immigration laws do not impose any minimum wages on students working under OPT.  The Obama administration has justified the STEM OPT by citing a shortage of American workers with STEM degrees.

The Obama administration created the 24-month STEM OPT extension without the need for Congressional approval, and the Trump administration can eliminate STEM OPT without Congressional approval. Given the President elect’s priority of protecting American workers, there is a high probability that the new administration will eliminate the STEM OPT extension.  Indeed, the new administration’s nominee for Attorney General, Jeff Sessions (R-Alabama), has described the reported shortage of American STEM graduates as a hoax. If, however, employees obtain a STEM OPT extension before the regulation is repealed, their work authorization will remain valid for 24 months.

Here’s what an employer can do to prepare:

  1. Identify any employees who have graduated in the last year and are working through post-graduation OPT.
  2.  Encourage eligible employees to apply for a STEM OPT extension as soon as possible. Eligible employees can apply for the STEM OPT extension up to 90 days before the current OPT employment authorization expires.

This article originally published on Natural Products INSIDER. All rights reserved.

Related Publications


Legal updates and news delivered to your inbox