What’s Happening
There is currently no concrete information available regarding what the Trump Administration’s agenda will actually look like as it relates to business immigration during his second term. However, based on his actions during his prior administration, as well as statements made by him and his advisors, we are able to speculate on some of the potential impacts the change in administration may have on employment based immigration.
While the administration’s initial focus will likely be on securing the U.S.-Mexico border and attempting to initiate Trump’s “mass deportation” program, the administration may also put in place some policy measures, possibly within the first few days following inauguration, which could impact employers and individuals working in the U.S. pursuant to employment based visas. These may include implementing extreme vetting measures for visa applications at consular posts abroad, instituting travel bans (such as the “Muslim ban” from the previous Trump administration), and broad additional processing delays and hurdles in the visa application process.
With respect to concrete actions directed at employment-based immigration law and policy, the administration has indicated that they will be primarily focused on immigration enforcement, compliance by foreign national workers and their employers, and policies to promote the hiring of American workers which would limit access to foreign talent. As such, we can almost certainly expect a more difficult adjudication climate for visa petitions under a Trump Administration and should anticipate the reinstatement and introduction of some unfavorable Policy Memoranda dealing with adjudications (including once again rolling back the policy which instructs officers to afford deference to prior approvals when adjudicating extension filing). We can also expect possible rescission of some of the Biden Administration’s initiatives increasing immigration options for STEM professionals and students.
While some policy changes and other initiatives can be implemented quickly via executive action, any changes to the immigration statutes or regulations would have to go through either the regulatory or legislative processes, providing some notice and the ability to proactively prepare for any changes in the law. In addition, even changes that can be implemented quickly will likely face legal challenges. However, a recent Supreme Court decision removing the requirement that courts give deference to an agency’s interpretation of its regulations may afford the executive branch more flexibility with respect to challenges to new regulations or interpretation of existing regulations.
Please be assured that D&S was able to work with clients to navigate the more difficult adjudication climate during the President-elect’s first term in office and will continue to ensure filings are prepared in such a way to help mitigate the risk of challenge as well as to provide a strong foundation to respond to any such challenges.
While the speed at which these measures could be implemented and the extent to which they will be implemented is unknown, we will be closely monitoring this and will be providing regular updates. In the interim, foreign nationals who are able to may want to consider renewing nonimmigrant visa stamps that will be expiring in the coming months prior to the start of the new administration on January 20th, 2025. Please reach out to us with any questions on this point.
What You Need to Know
We have included some details below regarding the anticipated impact on business immigration that we may experience during Trump’s second term, but caution that none of this information has been confirmed by the administration and at this point is based on looking at actions taken during the President-elect’s last term as well as statements made by him and some of his policy advisors:
Potential impact of policy changes on the H-1B visa program:
Further restrictions on H-1B visa holders who perform work at third party worksites.
Further restrictive interpretation of “specialty occupation” which may narrow the roles eligible for H-1B classification.
Further increases to required minimum wages to be paid to H-1B workers (making petitions for entry-level workers more challenging).
Potential challenges across all nonimmigrant visa extensions:
Rolling back of policy which instructs officers to afford deference to prior approvals when adjudicating extension filings.
Reintroduction of biometrics requirements for dependent visa holders.
Potential impact on immigrant visa and post-green card processes:
Return to prolonged delays in green card and naturalization processing.
Increase in required in person interview appointments for individuals who would typically have such a requirement waived.
Potential additional screening, visa processing delays at U.S. consulates, and additional entry restrictions
While many of the travel bans put in place during the last administration were due, in large part, to COVID-19, it is possible that the administration could reinstate some of the prior travel bans such as the “Muslim Travel Ban” and other extreme vetting measures which can cause visa processing delays.
Potential increase on government enforcement actions and compliance
The Trump Administration has stated it plans to step up the already robust enforcement measures of the Biden Administration including increased PERM audits, I-9 inspections, FDNS and Wage and Hour site inspections, and continued DOJ investigations into discrimination against U.S. workers.
What Steps Can Employers Take Now to Prepare
Review foreign national population for any employee’s receiving DACA benefits or in Temporary Protected Status (TPS) to evaluate what options they may have available to transition to a nonimmigrant work visa or green card
Conduct internal audits of Forms I-9 and Public Access Files in anticipation of increased enforcement and compliance efforts by the new administration
Formalize site inspection protocols since many compliance actions come in the form of government site inspections
Given the potential for visa processing delays, employers may want to encourage foreign nationals with nonimmigrant visa stamps that will be expiring in the coming months to consider renewing them prior to the start of the new administration on January 20th, 2025.
Employers may also wish to warn employees of the risk of travel which extends beyond January 20th, 202, especially those individuals who have reason to believe they could be subject to a travel ban, or individuals whose visa status affords Customs and Border Protection (CBP) significant discretion regarding the terms of their admission.
Long Term Planning Considerations
Employers should work with immigration counsel to develop longer term immigration strategies so that, should the anticipated changes to visa eligibility take effect, they have identified alternative solutions for employees who face challenges to their immigration status. These can include:
Ensuring that talent acquisition and hiring managers are aware of changes in eligibility requirements when assessing potential candidates who may require sponsorship.
Leveraging foreign offices if changes in visa eligibility or adjudication trends make it more difficult to obtain visas or visa extensions for key workers in the U.S.
Employers should seek legal counsel to review their immigration policies and ensure they understand how changes under the incoming administration could affect their current workforce and hiring practices. By taking these steps before the Trump Administration officially takes office, employers can do their best to mitigate risks, ensure compliance, and prepare for potential changes in immigration policies in a way that minimizes disruption to their foreign national population and business operations.
Note that this is an evolving situation and D&S will continue to update this post as more information becomes available.
Please note that the above is for informational purposes only and does not constitute legal advice. For specific questions about eligibility for immigration benefits, please contact your team at D&S.