Clinton vs. Trump: What the Election Means for Immigration and Employment

The election will not resolve workplace immigration issues, but it will provide major steering currents. The Immigration and National Act of  1965 needs comprehensive reform. That outcome is highly unlikely given the gulf in public opinion and differences in legislative priorities among Democrats and Republicans. The result? State regulation of immigration will grow with anti-immigrant sentiments being expressed in tougher state immigration laws (click on picture for examples). Eventually, the Supreme Court will need to define the increasingly conflicted boundary between federal and state immigration laws. In this respect, the new president's nominees to the Supreme Court could play a pivotal role.

For context, Canada’s and Australia’s immigration laws are magnets for immigrants. Their laws are meritocratic, seeking the best and most accomplished from abroad. State immigration laws in the U.S. are repellents, while federal law is motivated by a hodge-podge of “push” and “pull” values. 

Now consider the “specialty occupation visa” for H-1B visas under federal law. Currently, USCIS is authorized to grant 65,000 general-category visas and another 20,000 under the advanced degree exemption. Because these visas are for three years, and are also renewable for three more years, the annual cap understates the actual employment of these long-term but temporary alien workers. In 2012, there 152,421 H-1B visa-holders. In that year, H-1B workers were concentrated among computer occupations (71,425), engineering (13,247) and medicine (8,434).

Already, a circuit split affects these workers ("circuit split" means that federal appeals courts, arranged in geographic circuits, take conflicting approaches which leads to confusion in the law). 

In Dandamudi v. Tisch, 686 F.3d 66 (2d Cir. 2012), a New York law denied licenses to pharmacists who were working in the U.S. on H-1B visas. This state regulation conflicted with federal immigration law insofar as Dandamudi was lawfully permitted to work in the U.S. The Second Circuit ruled that strict scrutiny applied to the visa-holder’s equal protection claim. The court reasoned that the “statute here, which prohibits nonimmigrant aliens from obtaining a pharmacist's license in New York, is not narrowly tailored to further a compelling government interest.” 

This ruling conflicted with the Sixth Circuit’s decision in League of United Latin Am. Citizens (LULAC) v. Bredesen, 500 F.3d 523 (6th Cir.2007) and Fifth Circuit's ruling in LeClerc v. Webb, 419 F.3d 405 (5th Cir.2005). In LeClerc, a Canadian citizen who held an H–1B temporary worker visa was prohibited by a Louisiana regulation from being admitted to the state bar. The LeClerc court applied the rational basis, a permissive test that often leads to dismissal of equal protection claims.

Given the current outpouring of anti-immigrant public opinion, states could enact new and broader occupational restrictions. A vocal segment of the public blames aliens—even lawfully admitted aliens— for job losses and wage suppression. 

Under the LeClerc approach, these nativist restrictions would avoid tough scrutiny. That court looked past any possibility of anti-immigrant policy and concluded: “The State's determination that the easily terminable status of nonimmigrant aliens would impair these interests and their enforcement capacity is not irrational.” Dandamudi’s strict scrutiny approach differs, however, by viewing any law based on alienage as one that could “impermissibly interfere with the exercise of a fundamental right or operate to the peculiar disadvantage of a suspect class.”

The next president's nominees to the Supreme Court will likely choose between these sharply conflicting approaches.