Since taking charge of the White House, Trump has certainly made several earth-shaking decisions. From halting Obamacare, to announcing the formal withdrawal from the Trans-Pacific Partnership Agreement (TPP) and overhauling immigration policy, to deporting undocumented immigrants, every single one of them has been astonishing. What changes to US immigration policy are likely to happen while Trump is in office?
I The Separation of Powers in the United States
To answer the question above, it is first necessary to understand what restrictions Trump’s power will be subject to as President of the United States. A president with unchecked power can easily implement any of his policies. However, nothing like this will happen in the United States as the US national system relies mainly on the joint operation of three branches of government. They are as follows:
1) The White House and the United States Army at the executive level are governed by the President of the United States. As head of the state and commander-in-chief of the army, the President of the United States has absolute control over diplomatic and military decisions. All the functional government departments, such as the Federal Bureau of Investigation (FBI), the US Citizenship and Immigration Services (USCIS) and the US consulates around the world all take orders from the President. This means that Trump can direct USCIS in the review of cases, and instruct consulates in the issuance of visas. For instance, Trump may direct USCIS to directly reject an immigration application without going through the “request for evidence (RFE)” procedure, or advise officials at the United States Embassy in Beijing on issuing visas to Chinese students who would like to study in the US.
2) The US Congress: Capitol Hill, composed of the House of Representatives and the Senate, is the legislative body of the United States and is in charge of the United States’ financial allocations. This means that, should Trump intend to implement a new law, he must find a way to win the affirmative votes of the members of congress. If he plans to build a wall along the border with Mexico, he must lobby the Congress for money. If Trump gets out of hand, Congress may even vote to impeach him.
3) The Supreme Court is a judiciary body consisting of nine justices who have the highest power of interpretation over major legal issues, for example, whether women should have the right to abortion, or whether homosexual marriage should be legalized, etc. Issues like these have been debated for decades in American society, and the resulting series of lawsuits will eventually be brought to the Supreme Court, which is ruled by the nine justices. The US is a country that has adopted the judicial precedent system, so the rulings of the Supreme Court will dominate related policies for a long time to come. The judicial system may also restrict the power of the President.
On January 27, 2017, Trump’s travel ban sparked public dissatisfaction and protests, and a constitutional case was filed in the federal court. The justices of the federal court issued a freezing order to suspend the implementation of Trump’s policy and appeal at various levels to the Supreme Court. However, the Supreme Court eventually endorsed the Trump administration in a 5:4 voting. This means that, in the form of a ruling, the Supreme Court confirmed the power of the President of the United States to ban citizens from certain nations from entering the US.
II The Upsetting of Balance by the Appointment of a New Supreme Court Justice
The nine justices of the Supreme Court are generally classified into conservative, liberal and swing justices. In the past decades, they have maintained a delicate balance of four conservative justices, four liberal justices and one swing justice. In case of heated arguments over a case, usually there is a situation of 4 versus 4 at first, and then the final ruling is subject to the vote of the swing justice. The justices of the Supreme Court are nominated by the President of the United States, and voted in by Congress. Justices have lifelong appointments, ending only when they resign voluntarily or die. For this reason, every president wishes to bring justices who share their policy positions into the Supreme Court, so that the White House can obtain a favorable position in future government-related lawsuits. This is what Trump has done as well. With the retirement of liberal Justice Anthony Kennedy, Trump quickly nominated Brett Kavanaugh to fill the vacancy. Kavanaugh is a typical conservative, and his assumption of duty will cause the Supreme Court to be dominated by conservatives in the next decade or two. For the conservative Trump and Republicans, this is obviously good news. The change will, no doubt, contribute to the tightened immigration policy of the Trump administration.
Eventually Kavanaugh was elected as the 114th Justice of the Supreme Court by the tiniest margin in history (50:48). After he takes office, there will be five conservative justices in the Supreme Court of the United States, making it more conservative than ever. Given that the justices nominated by the President of the United States are highly independent and extremely loyal to their inner beliefs, the possibility of the two sides in the Supreme Court striking a new balance of power in the foreseeable future is very small. The increasingly conservative position of the Supreme Court and Kavanaugh’s more conservative and radical political views will exert a profound influence on the future tightening or relaxing of a series of policies, and even American society. In addition, this also enhances the confidence of Republicans in the coming mid-term election in November.
III The Flames of a Mid-term Election War are about to be Ignited
No doubt, the coming mid-term election on November 6, 2018 is a major event in American political circles. According to the US Constitution, the US presidential election is held every four years, and the congressional elections are held every two years. That is, one congressional election is held in the same year as the presidential election, while the other one is held between two presidential elections. The congressional elections held between the two presidential elections are the mid-term elections and reflect on the “political achievements” of the President of the United States over the past two years.
The two major political parties in the United States are the Democratic Party and the Republican Party. President Trump is a member of the Republican Party, and has always taken a conservative attitude towards immigration and preferred tough immigration policies. On the contrary, the Democratic Party is highly supportive of measures that encourage immigration.
The more seats the two parties have in Congress, the more likely they are to pass the laws they want to implement. In this sense, the mid-term election is a contest between the two parties for control of Congress. At present, the Republican Party is the majority party in both the House of Representatives and the Senate, so it is relatively easy for Trump to push forward his agenda. However, if the Democratic Party takes back control over Congress in November, Trump’s remaining term of office could be very tough for him. Trump once declared that, should the Democratic Party decline to grant money for building a wall along the border with Mexico or for supporting his immigration bill, he would have to “shut down” the federal government.
In this way Trump, has been trying to pressurize the Democratic Party so that the latter would compromise on immigration reform and other issues. This also suggests that there are huge and unbridgeable differences between the Republican Party and the Democratic Party. With the approaching of the mid-term election, the debates between them are likely to intensify. Last month, Republican representatives presented two immigration reform legislation drafts in succession. One draft with a tough position was endorsed by conservatives; the other was relatively neutral. Both of them failed in the House of Representatives. Some Republicans have expressed concern that, given that no comprehensive immigration reform legislation has been passed by the Congress in recent decades, it will be very difficult for any legislation draft to be approved by both the House of Representatives and the Senate. If the Democratic Party wins the mid-term election, it will be almost impossible for any of Trump’s immigration restriction policies to be passed as law. In that case, the all-out ban on the issuance of student visas to Chinese citizens proposed on October 3 will become nothing more than empty words.
However, should the Republican Party win, US immigration policy is bound to become tougher. Some of the immigration reforms proposed by the Republican Party in both houses of Congress have expanded the scope of criticism from undocumented immigrants to both undocumented and documented immigrants (Chinese immigrants included). Nominally, these schemes are proposed to put “America First”; in a deeper sense, they have revealed the concerns of ruling elites and some American citizens about changes in the demographic structure of the United States. That is, concerns that the influx of immigrants is turning white people into a minority. We can expect that if the Republican Party wins, the difficulty of legal immigration will increase again, and there will be more unfavorable proposals and policies against legal, documented immigrants.
IV Are there any remaining shortcuts for immigrating to the United States?
Trump is a successful businessman whose immigration policy is basically against illegal, undocumented immigrants. In the context of the mid-term elections and this complex situation, the fastest way of immigrating to the United States is applying for an “employment-based immigration visa first preference” (EB-1A). The EB-1A green card is mainly targeted at people who have shown distinguished talents in the fields of science, arts, education, commerce or sports. The applicants must have reached a top level and exerted continuing influence in these fields. Considering that they will continue with their engagement in these fields, their arrival will benefit the United States in substantial ways.
Requirements for EB-1A: one-time international achievements (Nobel Prize, Pulitzer Prize, Oscar, Olympics and so forth), or at least three of the following ten achievements: national-level awards (such as a gold medal in the National Games); membership of a professional association (such as academic of the Chinese Academy of Social Sciences); coverage of achievements by mainstream media; judge in a professional field (such as judge of “The Voice of China”); original and major contributions in a professional field; works published in a professional field (such as A Brief History of Time); artwork exhibited at a famous art show; key leadership function in a well-known organization (such as founder of a well-known enterprise); significantly higher income level than peers; commercial success in artistic performance (such as substantial box office earnings).
The application procedure is also very simple and quick. The first step is to submit an I-140 application to USCIS (the wait is generally 3-4 months; 15 days in expedited cases); about six months after being approved, there will be an interview by the consulate in Guangzhou; within 180 days after receiving the visa, the applicant can obtain a permanent green card.
In principle, EB1 requires applicants to be distinguished talents, but the threshold is not as high as some people may imagine, at least not as high as a Nobel Prize or an Oscar. As long as the materials are complete and the lawyers are professional, everyone stands a chance of presenting their talents to USCIS. People questioned how Melania Trump, the First Lady of the United States, managed to pass the EB1 standards as she was only a model (not even a super model) and was not qualified (they believed) for EB1. In the US, EB1 is nicknamed “the Einstein visa” which is misunderstood to be only issued to talents in science, medicine and similar fields. However, the fact is that anyone who has proven their talents in their industries and met the conditions stipulated by law can apply for EB1.
The attitude of a President towards immigration may influence the orientation of policies; however, from the perspective of US legislative procedures, the revision of immigration laws is not the decision of the President alone. If a law is to be abolished or revised, the decision must be approved by both the House of Representatives and the Senate, and signed by the President before it takes effect. This tedious procedure means that, to implement a new immigration bill, Trump has to convince many interest groups.
While in office, Obama tried to push his immigration reform act, which was voted through by the Senate but failed in the House of Representatives (controlled by the Republican Party then). Now that Trump intends to do the same thing, the difficulties will be huge as well. Thus, it’s foreseeable that, in years to come, several popular immigration laws in the US, such as EB-5 and EB1A are likely to remain in existence. For those who really want to immigrate to the United States, as long as they prove that they meet the requirements of relevant laws, their fate is still in their own hands. But the future is unpredictable, and we are all racing against time. Why don’t we hurry up while there is still time?
