Trump is Only President; US Immigration Continues

By Robert F. Loughran, Foster LLP

US President Donald Trump focused on immigration in the initial weeks of his administration. Within the first week, President Trump issued two executive orders directing Congress to allocate funds to build a wall along the border with Mexico, eliminate so-called sanctuary cities and remove all undocumented immigrants.

Trump also issued an executive order incorporating a travel ban for several Muslim-majority countries and suspension of the US refugee programme in January, which was later revised in March 2017. On 18 April 2017, he issued the ‘Buy American and Hire American’ executive order targeting perceived abuses of the H-1B Specialty Occupation Visa. The Trump Administration has also issued a series of directives to US Consulates abroad and US Customs and Border Protection at the ports of entry to increase the scrutiny of foreign nationals seeking entry into the US.

Checks and Balances

As US President, Trump directs the Executive branch, one of three coequal branches of the US government. The Executive branch enforces laws written by the Legislative branch and reviewed for Constitutionality by the Judicial branch. The Constitutionality of the ‘travel ban’ executive order was challenged in the original and subsequent revisions. The funding requests made by executive order were largely ignored by the US Congress, through which all funding authority must be approved, as evidenced by the recent short-term budget legislation funding the federal government through 30 September 2017. This budget did not contain any funds relating to the construction of a border wall or the requested USD 3 billion in funding for domestic enforcement, instead Congress only authorises USD 1.5 billion to repair existing structures and for more sensors and drones on the border. President Trump also requested funds for 15,000 additional Immigration and Customs Enforcement officers, of which he only received funds for 100.

The US Citizenship and Immigration Services (USCIS) has been ordered to provide enhanced scrutiny in reviewing all petitions or requests for benefits. When adjudicating petitions, USCIS has dramatically increased requests for additional evidence even when a petition is thoroughly prepared and well-documented. Increased scrutiny and delays are noted at both US Consulates abroad when foreign nationals are requesting visas and upon arrival to the USA by US Customs and Border Protection. Travelers should anticipate such scrutiny and potential for delay at each stage, and plan accordingly, but thus far there have not been any significant changes to US immigration laws, strategies and benefits available to foreign nationals, notwithstanding the President’s campaign rhetoric.

USA Remains Top Destination for Investors

Two common vehicles under US immigration law to secure the appropriate status by investment that have not been challenged by the Trump Administration are the E-2 Treaty Investor non-immigrant visa option or the EB-5 Immigrant Investor Visa. Although the EB-5 may receive more publicity as offering a path to permanent residency, rather than temporary residency, many foreign nationals may not possess the USD 500,000 or USD 1 million investment required for this immigrant visa strategy or alternatively may not find US permanent residency to be in their personal interest. Often, foreign nationals may start as an E-2 Treaty Investor, which among other eligibility considerations requires that the applicant’s home country has a treaty with the USA. For this temporary but extendable nonimmigrant visa category, the investment threshold is generally substantially lower than the EB-5, and the E-2 Treaty Investor visa may be extended indefinitely so long as the investment is maintained.

A recent report by New World Health found that, of approximately 82,000 millionaires who moved to a new country in 2016, approximately 10,000 moved to the US, ranking second in the world behind Australia with 11,000 and ahead of Canada with 8,000. The election of Donald Trump as president does not significantly impact the existing options for investors immigrating to the USA.


Robert F. Loughran

Robert F. Loughran

Foster LLP, Texas, USA
T: +1 512 852 4142
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Published: September 2017 l Photo: nd700 -

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