Kara Sears
President Donald Trump has been quick to act on his campaign promises regarding immigration, including the aggressive pursuit of the removal of non-citizens, limiting humanitarian relief, and closing the southern border. Trump's immigration policies have been controversial, with critics arguing that they are inhumane and violate international law. While the president can influence immigration policy to a certain extent, significant changes, such as the creation of a new visa program, generally require congressional approval. Trump has faced legal challenges to his executive orders on immigration, with courts ruling that his actions overstep the authority of the executive branch. This raises the question: can Trump change immigration law without congressional approval?
| Characteristics | Values |
|---|---|
| Can Trump change immigration law without Congressional approval? | No |
| Can Trump influence immigration law without Congressional approval? | Yes |
| Examples of influence | Aggressively pursuing the removal of noncitizens, pressuring states and localities to cooperate in immigration enforcement, limiting access to humanitarian forms of relief, and closing the southern border |
| Can Trump create a new visa program without Congressional approval? | No |
| Examples of new visa programs requiring Congressional approval | The "gold card" visa |
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What You'll Learn
Trump's campaign promises of mass deportations
During his 2024 election campaign, Donald Trump promised to carry out the "largest domestic deportation operation in American history". Trump's plans for mass deportations of undocumented immigrants have faced criticism for their potential legal and practical challenges, as well as their enormous costs.
Trump's campaign promise of mass deportations involves expanding the "expedited removal" program, combined with raids in neighbourhoods and workplaces. This would allow immigration officers to quickly deport individuals without due process if the government establishes that they entered the US without immigration documents and have been in the country for less than two years.
Trump's administration has also been permitted by a federal judge to require the registration of everyone in the US illegally, which could have far-reaching repercussions for immigrants. This ruling has been criticised by immigration advocates, who argue that it forces people into an impossible choice and raises questions about how it will be implemented.
In addition to mass deportations, Trump's campaign promises include ending birthright citizenship, “sealing” the southern border, and dismantling the nation's asylum protection system. These promises have been criticised as xenophobic and an attack on human rights.
While Trump has been quick to act on his campaign promises in his second administration, it is unlikely that there will be any substantial changes to the Immigration and Nationality Act. This is due to the Republican Party's limited power in Congress and the filibuster, which requires the support of Democratic senators to pass legislation.
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Trump's immigration policy changes
In his second administration, President Donald Trump has acted quickly on his campaign promise to focus on immigration. Trump's immigration policies have been described as testing the limits of executive power.
Trump's administration has taken a hard line on immigration enforcement, targeting both those who crossed the southern border illegally and those who violate immigration laws. The administration has aggressively pursued the removal of noncitizens, pressuring states and localities to cooperate in immigration enforcement, limiting access to humanitarian forms of relief, and closing the southern border.
Some of the specific actions taken by the Trump administration include:
- The expansion of Immigration and Customs Enforcement's (ICE) ability to arrest and detain unlawful migrants on US soil, including reversing a guideline that prohibited immigration raids in sensitive areas such as schools and hospitals.
- The use of military aircraft to deport thousands of people detained by Border Patrol.
- Changes to the green card application process for married couples, including updated forms, marriage interviews, and increased financial disclosures.
- The reinstatement of interviews for green card applicants, with a focus on "enhanced vetting."
- The removal of a policy that allowed USCIS to defer to its prior decisions, allowing the agency to reinterpret its regulations and create uncertainty in lawful employment-based immigration.
- The pursuit of mass deportations, with an estimated 2.2 to 3.2 million people potentially affected.
- A requirement for everyone in the US illegally to register with the federal government and carry documentation.
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The legality of Trump's executive orders
Trump's use of executive orders to shape immigration policy has been controversial. Through a series of executive actions, policy memoranda, and other measures, his administration has taken steps to reshape immigration policy, testing the boundaries of executive power. Trump has faced significant legal challenges, with courts frequently ruling that his actions overstep the authority granted to the executive branch.
For example, Trump's proposal of a "gold card" visa program, which would grant residency to wealthy foreign nationals investing a significant amount in American businesses, cannot replace the existing EB-5 Immigrant Investor Program without congressional approval. Executive orders can shape the EB-5 Program's execution, such as by altering processing priorities, but they cannot fundamentally alter or dissolve the program itself.
Additionally, while federal immigration law has long required non-citizens living in the US to register with the government, Trump's enforcement of this requirement specifically on those in the country illegally has raised concerns. A federal judge allowed the Trump administration to move forward with this, arguing that officials were simply enforcing existing requirements. However, this decision was criticized by immigration advocates, who pointed out that such universal enforcement had not been seen since the mid-1940s and carried the risk of negative repercussions for immigrants.
Trump's aggressive approach to immigration enforcement, including his focus on deportations and limiting legal migration pathways, has been a key feature of his administration. While some of his campaign promises, such as mass deportations, may prove logistically challenging to implement, his policies and rhetoric have already had a detrimental impact on immigrants' lives.
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Trump's proposed gold card visa
While it is unclear whether Trump can change immigration law without congressional approval, his administration has been quick to act on his campaign promises regarding immigration. This includes aggressively pursuing the removal of noncitizens, limiting humanitarian relief, and closing borders.
Trump's proposed "Gold Card" is a new immigration plan aimed at wealthy foreigners, offering them an easier path to US citizenship for a price of $5 million. The Gold Card is intended to replace the EB-5 visa program, which grants permanent residence to foreign nationals who invest substantial amounts in US businesses. The EB-5 program has been criticized as flawed and prone to fraud, and the Gold Card seeks to provide a simplified process for wealthy immigrants.
The Gold Card, also referred to as the "Trump Card," offers several advantages to its holders. It provides an unlimited right of residence in the US, similar to a green card, and a potential path to citizenship. It does not require investment in specific businesses, unlike the EB-5 program. The process is faster and more direct compared to other immigration programs, making it attractive to oligarchs and other wealthy individuals. It also offers an opportunity for companies looking to bring highly skilled workers into the country.
The development of the Gold Card system has been entrusted to Elon Musk's Department of Government Efficiency (DOGE) team. Engineers associated with Musk are working with various government agencies to create a website and application process for the visas. The DOGE team is focused on expediting the typical immigrant vetting process, aiming to obtain residency approval for high-net-worth applicants within two weeks of applying.
While the Gold Card has been presented as a way to strengthen the US economy through immigration, there are concerns about how it will be implemented and its potential impact on the existing immigration system.
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Trump's impact on employment-based immigration
While it is unlikely that Trump will be able to make any substantial changes to the Immigration and Nationality Act, his administration's focus on immigration will likely affect employers petitioning for and lawfully employing foreign national workers.
In the early days of the first Trump administration, USCIS withdrew its policy of deferring to its prior decisions, freeing the agency to reinterpret its regulations and create chaos in lawful employment-based immigration. For example, educational degrees that were approved in prior petitions may no longer qualify for the visa sought. Many petitions that were not questioned in the past will now likely draw a Request for Evidence or Notice of Intent to Deny.
Employers can reasonably expect heightened scrutiny of employer-sponsored immigration petitions and applications and, as a result, the increased likelihood of denial of petitions and applications. Employers should anticipate the rescission of the "Deference Memo", originally established by USCIS in 2004, rescinded by the Trump administration during his first term as president, and subsequently reinstated by the Biden administration. Under the current Deference Memo, USCIS officers are instructed to give deference to a prior petition approval, where a subsequent extension petition involves no material change in facts or eligibility, thereby providing a level of certainty and efficiency during the renewal of an employee’s work authorization.
For EB-2 and EB-3 petitions based upon an alien employment certification, USCIS is likely to scrutinize more closely the beneficiary’s qualification (in terms of education, years of experience, and skills) for the certified position. For all EB petitions requiring evidence of the petitioner’s ability to pay, a more rigorous review will occur of the primary documents (annual reports, audited financial statements, or tax returns) required, as well as of any secondary materials submitted.
In 2020, the Department of Labor (DOL) published an interim final regulation that greatly increased the minimum wage required to be paid to H-1B Nonimmigrants and beneficiaries of PERM employment certification applications. In some cases, the DOL rule increased the minimum wage by up to 100%, with employers being required to pay $208,000 a year for over 18,000 combinations of occupations and geographic labor markets, regardless of skill level and position. A federal judge enjoined the rule because the Trump administration did not provide a sufficient legal basis for the publication of the regulation as an interim final rule. It is possible that the regulation will be reintroduced with the new administration and may no longer be subject to an injunction if the correct regulatory process is followed – substantially increasing costs for employers.
Among the arguably more controversial actions of the first Trump administration was an executive order banning travel to the US by nationals of seven Muslim-majority countries that took effect immediately upon announcement, leaving employees stranded outside the US and resulting in employer disruption and uncertainty. A nation-wide injunction of the first travel ban was ultimately implemented, and subsequent travel bans implemented by the first Trump administration provided a brief notice period. As part of an overall immigration compliance program, employers should maintain up-to-date Form I-9, Employment Verification, records for all employees and additional required documentation for all sponsored foreign national employees.
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Frequently asked questions
No, Trump cannot change immigration law without congressional approval. However, he can issue executive orders and policy memos that can shape the way existing laws are executed.
Trump has issued executive orders to aggressively pursue the removal of noncitizens and to pressure states and localities to cooperate in immigration enforcement.
No, any new visa program, such as the proposed "gold card" visa, would require congressional approval to become law.
No, any effort to modify or terminate an existing visa program, such as the EB-5 Immigrant Investor Program, requires congressional action due to limits on executive power.
Trump's focus on immigration enforcement can have far-reaching repercussions for immigrants, discouraging them from engaging in daily activities and reducing legal migration pathways.
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