Trump’s Immigration Restrictions and Some Historical Context

Jul 10, 2017

Trump’s Immigration Restrictions and Some Historical Context

By Peter Alphonso, Esq.,  Associate Attorney at the Nair Law Group, APC.

“When someone’s going to Harvard, Yale, Princeton, Penn, Stanford, all the greats, and they graduate, and not only graduate but do great, and we throw them out of the country and they can’t get back in, I think that’s terrible.  We’ve got to be able to keep great people in the country.  We’ve got to create job creators[1].” 

Well, that is certainly sweet music to the collective ears of the immigration community, especially given that they were spoken by a 2016 Presidential candidate.  However, it was not Hilary Clinton, but rather Donald Trump, the same candidate who promised “We’re going to build a wall, folks. We’re going to build a wall. We’re going to build it. Don’t worry. We’re going to build a wall. That wall will go up so fast your head will spin.” Well, that certainly dampens the enthusiasm.   

While the construction of a concrete wall along our southern border does not seem imminent, and given congressional gridlock on such issues as healthcare and tax reform, it may be easy to dismiss this proposal as nothing more than election year bluster and rhetoric aimed at a conservative voting base, with little practicality. However, as we wade into the first few months of the new President’s administration, we are seeing that simple executive orders, issued without congressional approval, could be nearly as effective as a border wall, and potentially as damaging for the inflow of talented professionals into the U.S. 

On May 30, 2017, in connection with the President’s desire to enforce an “extreme vetting” program for foreign nationals seeking admission to the U.S., the Department of State (“DOS”) issued a supplemental questionnaire for certain visa applicants who may present a threat to national security. The new supplement requests specific details on the applicant’s background, including:

•           Travel history during the last fifteen years, including source of funding for travel;

•           Address history during the last fifteen years;

•           Employment history during the last fifteen years;

•           All passport numbers and country of issuance held by the applicant;

•           Names and dates of birth for all siblings;

•           Name and dates of birth for all children;

•           Names and dates of birth for all current and former spouses, or civil or domestic partners;

•           Social media platforms and identifiers/handles, used during the last five years; and,

•           Phone numbers and email addresses used during the last five years.

While most of this information is already collected on visa applications, the request for social media identifiers and associated platforms is new for the Department of State, although it is already collected on a voluntary basis by the Department of Homeland Security (“DHS”) for certain individuals. Given that decisions made at U.S. Consulates are often left to the discretion of the individual consular officer reviewing the application, it is concerning that an officer may deny an application for social media content that is deemed controversial, such as criticism of the U.S. government or support for certain religious practices. 

In addition to the new extreme vetting protocols, Trump’s controversial travel ban also took effect a month later on June 29th after an intense battle in the federal courts.  The Supreme Court ruled earlier this month that the test for foreign nationals entering the U.S. will be whether one has a “credible claim of bona fide relationship” with either an entity (such as a school or employer) or a person living in the U.S. (such as a spouse, sibling or child).  This will apply only to individuals from the following 6 countries: Libya, Syria, Iran, Somalia, Yemen and Sudan.  If an individual from one of these countries cannot establish evidence of this bona fide relationship, they will be banned from entering the U.S. for 90 days.  The travel ban is not yet 2 weeks old, but controversy has already ignited regarding the exclusion of grandparents and cousins as qualifying relatives.    

It is too early to determine the effects of these measures, and how the flow of talented foreign nationals into the U.S. will be impacted, but it is clear from the onset that making any type of entry into the U.S. cannot be considered easy or routine.  While the travel ban, with all of its flaws, appears to be targeting only foreign nationals of the six above-named countries, it’s worth asking the question:  Who’s next?

Beyond the new restrictions at the consulates and ports of entry, there has been a new emphasis placed on investigating immigration practices within the U.S.  Earlier this year, DHS announced that protecting U.S. workers by combating fraud in employment-based immigration programs, such as H-1B, would become a priority for the agency.  DHS stated that the agency would continuously work to deter and detect fraud in all immigration programs and further their efforts by enhancing and increasing site visits, interviews, and investigations of petitioners who use the H-1B visa program. These efforts would help assist in the prosecution of program violators and ensure that U.S. workers are not overlooked or replaced in the process.  Specifically, the agency confirmed that they would investigate H-1B fraud and abuse, publishing five (5) specific indicators on their website (https://www.uscis.gov/working-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/combating-fraud-and-abuse-h-1b-visa-program). 

Given the reputation of Steve Bannon, the President’s Chief Strategist, who once falsely claimed, in a negative light, that two-thirds to three-quarters of Silicon Valley CEOS are from “South Asia or from Asia[2],” it would seem that that the immigrant community is facing an unprecedented attack from a far-right nativist movement with racist and xenophobic undertones, all within the context of a decades long war on terror and a declining working class. 

While it may seem frustrating, or even hopeless, comfort can be found in the lessons taught throughout American history – immigrants have seen these restrictionist policies before. In 1907, Congress established the Dillingham Commission, which was charged with studying the impact of immigrants on the United States.  The Commission famously asserted that more recent immigrants from southern and eastern Europe were inferior people, and thus, were not capable of becoming successful Americans.  More than a hundred years before Trump surrogate Marco Gutierrez famously warned “My culture is a very dominant culture, and it’s imposing and it’s causing problems. If you don’t do something about it, you’re going to have taco trucks on every corner[3],” the Dillingham Commission appeared concerned about pizza parlors on every corner – most would agree that both concerns are unwarranted.

The xenophobic undertones of the Dillingham Commission would remain part of American immigration policy until World War 2, when the American public was shocked at the number of refugees refused entry, and their ultimate fates in Europe and Asia.  In addition, the post-war industrial boom created the immediate need for immigrants to join the workforce.  Both compassion and practicality would guide the American people towards accepting immigrants, and rejecting nativist sentiments.  We can only hope that this will be the roadmap towards a new understanding in the 21st century. 

Immigrants in the U.S. have stared down challenges before – they will do so this time.  As the famed American novelist Herman Melville once said over 170 years ago, “You cannot spill a drop of American blood without spilling the blood of the world[4].”  Well said, Herman. 



[3] https://www.nytimes.com/2016/09/03/us/politics/taco-trucks-on-every-corner-trump-supporters-anti-immigration-warning.html

[4] https://www.brookings.edu/research/changing-faces-immigrants-and-diversity-in-the-twenty-first-century/