Author: Anastasia Tonello
It isn’t just Mexicans who are hitting a brick wall when trying to enter the United States.
Business people from London and other centres of commerce around the world are increasingly encountering a barrier less visible, but much more tangible than the promised “big beautiful wall” along the Mexican border that Donald Trump placed at the heart of his election campaign.
President Trump has to date found passing laws in the US difficult. In his bid for the White House, the candidate Trump made many fantastic promises: he was going to reform the tax code, rebuild America’s failing infrastructure, solve healthcare, and bring manufacturing back to America.
But it was his promise to fix America’s broken immigration system that got the most notice. Alongside the wall came promises to remove undocumented immigrants and deliver a “total and complete shutdown” of Muslims entering the US.
The first month of his administration included a major, highly publicised policy failure: the January 2017 travel ban, which caused chaos at US airports before federal judges imposed injunctions on the order.
The President quickly learned that the powers of the executive in the US are limited and subject to “checks and balances” – and that some manoeuvres are easier than others.
Building a wall and removing undocumented immigrants requires Congress to provide money. Barring entry to the US of an entire religion runs counter to freedom of religion guaranteed in the Bill of Rights and conflicts with congressional authority over immigration laws.
On the other hand, how government agencies operate, what their priorities and policies are, how they interpret regulations, and how they exercise discretion sit squarely within the purview of the executive.
And here is where President Trump found he could deliver on his promises to reduce immigration to the US. Unfortunately, it isn’t illegal immigration that has been the main object of Trump’s overhaul, but legal immigration.
Employers, skilled workers, entrepreneurs and investors who are “following the rules” and are “in the line” are those who have seen and felt the real wall – the invisible wall – that is being built around America.
Using British government terminology, you could say that Trump has created a “hostile environment”.
Away from the headlines and the jousting with the Mexican government, little by little we’ve seen adjudications of employment-based work visa petitions taking longer and subjected to far-reaching requests for evidence.
If approved, they’re subject to additional delays through mandatory interviews which previously were waived for most cases.
Adjudications are less predictable. In October 2017, the United States Citizenship and Immigration Services (USCIS) rescinded guidance that has been policy for more than a decade. USCIS officers are no longer required to give deference to prior decisions made on employment-based extension petitions.
The previous policy framework gave employers predictability in outcomes and enabled adjudicators to allocate resources to new cases or those warranting more scrutiny.
This new policy not only burdens employers with additional requirements and disrupts business – it also means that adjudicators spend more time on individual cases regardless of the actual threat of fraud or misrepresentation.
The result is longer processing times and fewer approvals. But it is all happening “below the radar”. The rules are changing with little or no notice; businesses are unaware and unable to adapt to changes until negative decisions have already been made.
Since January 2017, we’ve seen USCIS quietly changing long-held and relied-upon policies, often with no notice, and only discernible through trends seen by larger organisations and specialist immigration attorneys.
Statistics on visa approvals are released on a fiscal year basis, making it difficult to differentiate between administrations.
However, the data released so far confirms what those who practise in this area already knew: as a result of the Trump administration’s policies to stop or slow the admission of skilled workers and entrepreneurs, there are fewer approvals of key visa applications.
British business people requiring visas to travel to the US for work need to be aware of this shift. At the very least, more time needs to be allowed. But in many cases, a plan B may be needed.
No matter your intentions, credentials, or past experience, you may find the invisible wall is a very real barrier to doing business on the other side of the pond.