The Kushner Immigration Plan: What You Need to Know

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On Thursday, May 16, 2019, President Donald Trump unveiled his “new” immigration plan. The goals of the new plan include: (1) stopping illegal immigration; (2) fully securing the border; and (3) implementing a new legal immigration plan that “protects American wages,” “promotes American values,” and “attracts the best and the brightest.”[1] For months we have heard whisperings of the great collaborations of Jared Kushner and Stephen Miller promising to fix the United States’ broken immigration system. Although there are clearly many problems with our immigration system, the “new” immigration plan detailed by President Trump in the Rose Garden bears striking resemblance to something old: The Reforming American Immigration for Strong Employment (RAISE) Act introduced by Senators Tom Cotton and David Perdue over two years ago.

A theme of Trump’s presidency has been his anti-immigrant rhetoric. Indeed, when pointing out the same, his defenders are quick to point out that, “Trump is not against LEGAL immigration, he is only against ILLEGAL immigration.” The RAISE Act was staunchly supported by the Trump Administration, whose own advisers (Stephen Miller and Steve Bannon) helped shape the revised version of the bill. The RAISE Act proposed to cut levels of LEGAL immigration to the United States by 50 percent, halving the total number of green cards issued each year, imposing a cap of 50,000 refugee admissions per year, and killing the visa diversity lottery. The RAISE Act also proposed a point-based or “merit-based” system to immigration. It has not gained any traction on either side of the proverbial aisle.

President Trump’s plan does not seek to cut any number of green cards issued each year. Apart from that detail, which is an improvement from the previous White House supported proposal, the differences of his plan to the RAISE Act appear to cease. This is the same plan, presented in new wrapping paper. Although we could address much in the President’s speech, including his proliferation of various immigration myths and misstatements of law and fact, we focus here solely on the proposals his new immigration plan will make.

According to Stuart Anderson, a top immigration expert, Trump’s proposal could eliminate applications for “more than 4 million people waiting in family and employment-based green card backlogs.”[2] Although President Trump was vague in stating that the plan “will replace the existing green card categories with a new visa, the Build America visa,” the White House has previously stated that “’people who are currently waiting for green cards will receive additional points,’”[3] indicating that previous applications will not be retroactively preserved upon the implementation of the new system.

PROPOSED CHANGES THAT WE KNOW ABOUT

Because President Trump has not issued a written plan or bill, it is difficult to evaluate the proposal completely. However, this is what we know the Trump Administration wants to change, in order of significance for our clients:

  • Removing or Limiting “Random Selection” (i.e. Family-Based Immigration, Diversity Lottery, and Humanitarian Relief)

The President expressed disdain at what he referred to as “random selection” immigration. This seemingly broad category apparently includes all family-based immigrants, who the President stated are admitted solely because they have a relative in the United States, which is “on the basis of random chance.” Immigrants earning visas by random lottery and those selected for “humanitarian relief” were also included in this category. President Trump wants to limit or remove all of these. The Diversity Visa program will likely be abolished.

For family-based immigration, the administration’s plan will only give preference to the immigrant’s immediate family—his or her spouse and children. At present, it does not appear that there will be any immigration path available to other less immediate family members, including parents, under this plan.

Limitation on humanitarian relief could include elimination or further restrictions on Temporary Protected Status (TPS) for individuals whose countries have been affected by natural or manmade disasters. It could also include restrictions on victims of domestic violence or serious crimes who would normally be eligible to apply for relief via a U visa, or even apply to T visas for victims of human trafficking. Even Deferred Action for Childhood Arrivals (DACA) could be viewed as “humanitarian relief” and therefore be in danger under the Trump proposal.

  • Change Proportion of Highly Skilled Immigration from 12% to 57% of Total Green Cards By Implementing a Points- and Merit-Based System

In an effort to purportedly attract companies, skilled students and researchers, and investors to the United States, the administration’s plan will propose a point- and merit-based system for all would-be immigrants reflective of Canada’s system. President Trump’s plan will prioritize younger workers, though the exact top-priority age is unknown. It will also apparently assign higher values for individuals with offers of employment, for having “valuable” skills, for having an  advanced education, for individuals with plans to create jobs in the U.S., and for individuals with higher prospective wages. The points-system will also assign a greater number of points for individuals proficient in English prior to admission. Finally, passing a civics exam, which has hitherto fore been reserved for the naturalization process, may be a pre-requisite to admission as well.

These point-based categories are highly reminiscent of the RAISE Act. The RAISE act, which failed to garner practically any support in Congress, had higher point allocations for younger workers, with the maximum amount of points arbitrarily going to individuals between the ages of 26 and 30. Points were further allocated to individuals with higher secondary education, though individuals with degrees from the United States were given preference over those with equivalent degrees from other countries. The RAISE Act also allotted points for individuals with English proficiency, the most points going to individuals with 100 percent fluency. Not mentioned in Trump’s speech but highlighted in the RAISE act was further point allocation for Nobel laureates and (individual) Olympic medalists (team sports don’t count). Finally, the RAISE Act (like the Trump plan) proposed point allocations for proffered wages 150%– 300% higher than the median household of income, and further allotted points to individuals investing between $1.35 million and $1.8 million in a U.S. “New Commercial Enterprise.” As the categories reflected in Trump’s speech highly correspond with those in the RAISE act, right now we can probably already predict that these will be the categories for the point-based system in the forthcoming bill.

  • Ambiguous Overhaul of The Asylum System

President Trump views the asylum system as broken and inefficient, though not in the same way immigration attorneys do. The administration’s proposal purportedly “expedites” asylum relief by “screening out meritless claims.” The process by which the administration is allegedly going to “screen” claims was not detailed in President Trump’s speech, nor was the administration’s definition of what will be defined as “meritless.” It remains to be seen whether President Trump’s proposal will also put an arbitrary cap on the number of refugees admitted into the country each year like the RAISE act.

President Trump also says that his plan will “change the law to stop the flood of child smuggling,” which he said current law and federal court rulings currently promote, and “to humanely reunite unaccompanied children with families back home.” Again, the President’s speech did not layout how exactly his plan will deter people on the issue of smuggling. Contrary to the apparent political virtue signaling, the more likely cause of people (including children) willing to pay enormous amounts of money to be smuggled into America lies in America’s promise of freedom, refuge from violence, and economic prosperity.

  • Closing “Loopholes” For Gang Members and Criminals

President Trump’s plan allegedly plans to close loopholes in federal law to make gang members and criminals inadmissible. It is unclear exactly what loopholes the President refers to that allow for known gang members to be admitted into this country, but there you have it. Regarding the broad use of the word “criminals” by President Trump, it would appear that his plan may seek to revise existing law governing “crimes of moral turpitude” and “aggravated felonies” for purposes of admissibility and removability. It is unclear exactly what changes these areas may have coming, but as always here at Kuck | Baxter Immigration, we encourage our clients and all immigrants to avoid breaking the law.

  • Probably No Changes to Temporary Non-Immigrant Visas

Because President Trump made no mention of changes to non-immigrant visas such as H-1Bs, Ls, or visitor visas, we do not expect any changes to be included in the upcoming bill to the same.

  • Create A Self-Sustaining “Border Security Trust Fund” Financed By The Fee And Revenue Generated At The Border Crossings.

President Trump wants to create a “Border Security Trust Fund” financed by the fees and revenue generated at the border. At present, the United States charges crossing fees for aircraft, water vessels, and commercial vehicles. The U.S. Customs and Border Protection (“CBP”) agency collects more than $44 billion per year in revenue for the federal government. If the proposed trust fund is to be funded by border crossings, it will likely be siphoned from the revenue generated by the CBP. Through the implementation of this trust fund, the Trump Administration hopes to invest in technology designed to “scan” 100 percent of everything coming through the borders, while also speeding up trade and commerce. No specific technology was mentioned in President Trump’s announcement.

CONCLUSION

This bill will probably not pass Congressional review, at least not with the current Democrat controlled House. However, if Trump is re-elected, he has already promised to resubmit the bill at the next session.

[1] https://www.whitehouse.gov/briefings-statements/remarks-president-trump-modernizing-immigration-system-stronger-america/

[2] https://www.forbes.com/sites/stuartanderson/2019/05/16/trump-immigration-plan-may-throw-4-million-people-off-immigrant-waiting-lists/#e7bac636943a

[3] Id.

About the Author

Phil Kuck

Associate Attorney

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