• Visa Laws under President Trump

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    CRISPIN R. ARANDA

    CRISPIN R. ARANDA

    WILL your visa priority date be affected by a Trump presidency? More broadly, will there be more or less visas under President Trump’s administration.

    Not likely, but yes it could be. Consider the following:

    Hillary was popular, but Donald was elected based on the presumed number of electoral votes for each state that he won. Some states give all the electoral votes to the winning candidate, others on a proportional basis.

    So while Clinton got 60,071,781 votes (47.7 percent) and Trump had less, 59,791,135 votes, 2 percent lower than the former Secretary of State, the electoral college votes for each state were the ones that count (pun not intended).

    Ironically, the 538-strong Electoral College that Trump labeled as “a disaster for democracy” got him to the White House, getting 62 more Electoral College votes against Clinton’s 228. A majority of 270 electoral votes is required to elect the President. The Electoral College consists of the number of members in the congressional delegation (two for the Senate and one for each member of the House of Representatives)

    The Electoral College is not a place or academic institution for dummies, although as party faithful, some of those comprising the electoral college in one state could be a rubber stamp (therefore, a dummy) of the selecting political party (whether Republican or Democrat).

    The founding fathers of the US Constitution created the Electoral College as “a compromise between election of the President by a vote in Congress and election of the President by a popular vote of qualified citizens.”

    Once selected, the members of the Electoral College meet and cast their votes, this election year on December 12, 2016, a month after the winner was announced to the world. Will the electors change their minds?

    Highly unlikely.

    (Please refer to Table 1)

    US Congress: House of Representatives—Republicans, 239; Democrats, 193. In the Senate, while the numbers are close, Republicans hold the slight majority, 51 to 48.

    US Congress: House of Representatives—Republicans, 239; Democrats, 193. In the Senate, while the numbers are close, Republicans hold the slight majority, 51 to 48.

    Who makes visa laws?
    The US government has three branches: the legislative (the body that creates laws); the executive, or the presidency, the implementor of the laws created by Congress, the legislature; and the courts, the interpreter of the laws. When the implementation of a created law is brought before the courts, the Supreme Court has the final decision.

    The President and the Supreme Court cannot create laws. However, the Executive Department is in charge of drafting and implementing the regulations on how a created law should be carried out.

    President Trump (after his swearing-in) can revoke, cancel and eliminate executive decisions, agreements, regulations and policies under the executive department. This includes those emanating from the Department of Homeland Security with its three agencies, the US Customs and Border Protection (CBP), the Immigration and Customs Enforcement (ICE) and the US Citizenship and Immigration Services (USCIS).

    The CBP is in charge of protecting the borders, including monitoring the Great Wall that Trump says Mexico will pay for. The ICE is in charge of going after legal and illegal immigrants who were able to cross the border without going through the ports of entry, and those who were admitted with valid visas but stayed on after their authorized period of lawful presence.

    Finally, the USCIS accepts, decides and monitors petitions and applications for permanent immigration benefits, particularly petitions for relatives or foreign workers, adjustment of status to permanent residents, as well as naturalization or citizenship applications. Temporary immigration benefits such as change of status from one nonimmigrant category to another, or extension of stay in the same nonimmigrant category are also decided by the USCIS.

    Visa allocations on the other hand are handled by the Department of State through the Bureau of Consular Affairs which in turn has authority over visa matters through consular offices overseas manned by US consular officers.

    The Immigration and Nationality Act (INA) was the consolidation of immigration and nationality laws before June 27, 1952. The INA is considered the bible of US immigration laws. Subsequent pieces of legislation by the US Congress amended the INA by adding, deleting, revising the existing provisions.

    The Immigration and Nationality Act amendments of 1965, for example, repealed the national origin quota system “representing the most far-reaching revisions of immigration policy in the United States since the First Quota Act of 1921.”

    Alarmed by the increasing number of illegal and undocumented aliens in the US Congress passed the Illegal Immigration and Immigration Reform Control Act of 1986, popularly known as the “Amnesty Bill” which offered legalization to undocumented aliens in the US since prior to 1982.

    The Legal Immigration and Immigration Act of 1990 increased the total immigration numbers: immigrant employment visas from 54,000 to 140,000 and the family-sponsored categories to the current 226,000. These are the statutory numbers, meaning set by law as passed by the US Congress.

    President Trump (after swearing in) cannot change these numbers by himself.

    Even with a majority of members of the House of Representatives controlled by Republicans (and a tiny majority in the Senate), the Trump presidency cannot ensure the massive and immediate deportation of 11 million illegal immigrants as he promised during the nomination battles.

    Nor can he single-handedly build, and force the Mexican government to pay for, the wall that Trump promised during the primaries to keep the “Mexican rapists and criminals” out of the United States.

    So for now, the visa numbers in the family and employment-based categories remain safe. The current Family Sponsored preferences and visa allocation are shown below.

    Family-sponsored preferences
    • First: (F1) unmarried sons and daughters of US citizens: 23,400, plus any numbers not required for fourth preference.

    • Second: spouses and children, and unmarried sons and daughters of permanent residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers:

    • (F2A) spouses and children of permanent residents: 77 percent of the overall second preference limitation, of which 75 percent are exempt from the per-country limit;

    • (F2B) unmarried sons and daughters (21 years of age or older) of permanent residents: 23 percent of the overall second preference limitation.

    • Third: (F3) married sons and daughters of US Citizens: 23,400, plus any numbers not required by first and second preferences.

    • Fourth: (F4) brothers and sisters of adult US Citizens: 65,000, plus any numbers not required by first three preferences.
    category20161114For the undocumented who were granted a temporary reprieve under executive decisions–such as the Deferred Action for Childhood Arrivals (DACA) and DAPA (Deferred Action for Parents of Americans and Lawful Permanent Residents)–this can be immediately rescinded.

    While the current visa allocation system and numerical limits remain safe, it must be said that there are still more applicants than there are visas available. So, the wait will remain as lengthy as before.

    Currently, those waiting for their visas to be issued (once the priority date becomes current) could take solace in the fact that the State Department has created two charts: one for those who can apply for their immigrant visas (Final Action Dates Chart) and the other chart for those who should start obtaining and submitting documents prior to their filing dates to be current (Dates for Filing Chart).

    A Trump presidency can revise the issuance procedures as this falls under the ambit of the implementing laws created by Congress.

    Should a sufficient number of immigrants affected by an executive action of a Trump presidency file a court case and such case reaches and is finally decided by the Supreme Court, then that decision to affirm or deny the change will affect the implementation of the Immigration and Nationality Act.

    As indicated in the Nov-Dec Filing Column, the dates have not changed from last month.

    So applicants in the family or employment-based categories whose priority dates are after the set date would have to wait for the next Visa Bulletin to know if they can start processing their immigrant visa applications.

    Trump has divided the nation and is poised to rule. Whether he will maintain his campaign posture or not will be decided by his first months of presidential decisions.

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    1 Comment

    1. Hi Mr. Aranda. Thanks for taking time to educate us. Not I understand. You have the knack of providing the most relevant information regarding he election and its implications in our dreams to see USA before we die.