Given the amount of the rhetoric concerning immigrants that occurred during the 2016 presidential campaign, many members of the immigrant community are nervous about what to expect next. In addition to the foreign nationals living and working in the U.S. feeling uncertain, the companies who employ non-immigrant, professional workers in a variety of employment-based visa categories are also unsure about what the change in presidential administrations will mean for their workforce.
The U.S. Constitution does not permit a President, acting alone, to repeal or amend laws, statutes, or regulations. A President can, however, undertake actions to reverse some of the policies of his predecessor, particularly if those actions exist only as Executive Actions and are not codified in statutes or agency regulations. The most common types of executive actions include 1) executive orders, 2) discretionary agency directives and guidance, and 3) agency rules. Employers and their foreign national employees should take some comfort in the fact that that agency rules (for example, rules published by the Department of Homeland Security in effect by the time the president-elect takes office) require a significant amount of time to revise or revoke. Agency rules must undergo publication, notice and comment periods before a final rule can take effect, pursuant to the Administrative Procedures Act. Any proposed changes to these rules will be well publicized and the public will have the opportunity to provide input on any changes sought by a new administration, as well as prepare for any ultimate changes to current regulations. On the other hand, discretionary agency directives and guidance do not have the force and effective law, and thus can change with a new president. The same is true of executive orders, written by the President to govern executive branch agencies and officials.
The president-elect has also made numerous comments criticizing NAFTA, which provides for TN visa status for a number of professionals from Mexico and Canada. While the U.S. has not formally withdrawn from an international trade treaty since the mid-1800s, the NAFTA treaty does contain a provision allowing a country to withdraw from it upon providing 6 months notice to the other parties to the treaty, and the President could do so without consent from Congress. Please stay tuned to our newsletter and our firm's News and Updates section of our website in the coming months for important information regarding any proposed changes or new executive actions that may affect immigrants and work-authorized non-immigrants.