President-elect Trump has expressed strong views on immigration and he has indicated that he plans to make significant changes to U.S. immigration laws and policies right from the start of his administration.
He has been specific about certain actions he wants to take, such as building a wall between the U.S. and Mexico, stepping up deportations of those in unlawful status with criminal convictions, withdrawing from NAFTA and terminating President Obama’s Executive Order issued in 2012 that established the Deferred Action for Childhood Arrivals (DACA). Under DACA certain qualified undocumented immigrants are protected against deportation and may be eligible for an Employment Authorization Document (EAD) that authorizes open-market employment.
In addition to these specific actions, Trump has also expressed a general interest in strengthening protections for the U.S. labor force and stepping up immigration enforcement generally.
All hotel operators, from large multinational organizations to small boutiques, will be impacted by these forthcoming changes. What do all these promised and potential immigration changes mean for the hotel industry?
DACA
Because the EAD associated with DACA is good for open-market employment, there is no specific employer-sponsorship required, nor is there a qualifying professional degree or experience required to qualify for the benefit. The DACA-based EAD is a “List A” document on the Form I-9 Employment Eligibility Verification, which is proof of identity and work authorization. Those in possession of a valid DACA-based EAD may be eligible for various positions within the hotel industry, from an entry-level housekeeping position to a managerial role.
Since the Department of Homeland Security has approved nearly 750,000 DACA applications and related applications for EAD’s, it is likely that at least some employees may have presented a DACA-based EAD as their I-9 document proving their eligibility to work in the United States.
If President-elect Trump rescinds DACA, he could potentially order the cancellation of existing DACA-based EAD’s. Alternatively, he could allow the existing EAD’s to remain in place until their stated expiration dates and prohibit renewals. It is more likely that existing EAD’s will remain valid, but since it is not yet known how this will play out once President-elect Trump takes office, it is critical to follow this issue closely. Ensure human resources personnel do not take any preemptive employment actions or engage in any unfair or discriminatory practices. Consult with counsel before taking any employment actions based on a suspicion that an employee may not have valid employment status.
NAFTA
President-elect Trump has stated that he wants to withdraw from the North American Free Trade Agreement (NAFTA). NAFTA became effective in 1994, transforming trade relations between the U.S., Canada, and Mexico by eliminating tariffs and improving the ability for the U.S. to invest in the neighboring countries. NAFTA also provides U.S. work visas, called “TN” visas for Canadian and Mexican citizens working in certain professional occupations. One such occupation on which the U.S. hotel industry heavily relies is “hotel manager.” Additional NAFTA occupations that support hotel infrastructure and are commonplace across the industry may include, but are not limited to: designer, engineer, architect, accountant, computer systems analysis, and management consultant.
What will happen to everyone working on TN visas in the U.S. if President-elect Trump withdraws from NAFTA? At a minimum, he could not withdraw from NAFTA without first providing six months notice to the signatories. It is highly likely that these visas will not be eliminated overnight as the implementation of NAFTA in the United States was accomplished through an act of Congress and the authority for these visas is embedded in the U.S. Immigration and Nationality Act and relating regulations. If TN visas will be unwound, this will likely involve a long and complicated process requiring congressional action. Therefore it seems likely at this point that hoteliers should be able to retain their current TN workers, at least for the foreseeable future. However, it would be prudent to consult with immigration counsel about alternative visa options that may be available for your TN workers should they lose that status at some point in the future.
Plan for increased enforcement
While we do not yet know the specifics, it is highly likely that worksite enforcement of immigration laws and regulations will increase in a Trump administration. The hotel industry should be ready for this stepped-up enforcement. Perform an I-9 and E-Verify audit (best practices require a yearly I-9 audit) and ensure I-9’s are in perfect order.
For hoteliers missing I-9’s or need to correct existing I-9’s, it is always far better to do so on their own before the government comes knocking. Ensure that employees on work visas are engaging in the activities described in their visa petitions and applications and file amended petitions if their jobs change in any material fashion. Hoteliers need to make sure they are paying the wages promised on the visa filings and are paying these wages in regular payroll increments, and not with lump sum payments at the end of the year.
Hoteliers with J-1 or H-3 trainees must ensure the employees are receiving the training as promised to the government. Hoteliers must make sure recordkeeping is in order – both with respect to immigration files for employees on visas as well as I-9’s. Hoteliers should conduct yearly staff training for those charged with I-9 responsibility to make sure not only that records are in order but also that personnel are not engaging in any unfair or discriminatory hiring practices.
U.S. Customs and Border Protection officers have never been particularly friendly, and if anything, their attitude in the Trump administration will be even stricter. Make sure employees on work visas understand what their status entails and that they know what documents to carry when they travel in and out of the U.S.
The Trump Administration may also enact rules or procedures that heighten the scrutiny of particular groups of people and thereby complicate the customs and border process. The hotel industry could see an impact not only on its foreign talent, but also a decline in foreign tourism if the U.S. is perceived as hostile or unwelcoming towards foreigners.
By Susan J. Cohen, Esq., founder and chair of the Mintz Levin’s Immigration Practice, Boston. The author wishes to acknowledge the contributions of Elizabeth Wheeler to this article.