What’s Happening
On January 20, 2025, President Trump signed numerous executive orders (EOs), including several pertaining to or impacting immigration. The content and anti-immigrant sentiment of most of these EO’s were not unexpected. While they largely focussed on border enforcement, undocumented immigrants, and humanitarian immigration, the President’s Day 1 EOs also have potential implications for foreign nationals seeking entry to the United States, birthright citizenship, and other policies affecting noncitizens more broadly.
What You Need to Know
Many of the EOs issued on Monday will not take effect until administrative agencies are able to publish regulations or enact policies to implement them, a process that generally takes several months, and some are already facing challenges in Federal court, with additional lawsuits expected. Below is a summary of the anticipated impact of President Trump’s Day 1 orders on high skilled/business immigration.
Rescission of Biden Administration Executive orders on Streamlining Immigration Processes and Increasing Immigration Pathways for Individuals Working in STEM Fields and Artificial Intelligence (AI)
Key Takeaways - Several of President Trump’s Day 1 Executive Orders undid a number of EOs put in place under President Biden, which directed immigration agencies to reduce barriers to legal migration and access to immigration benefits, which led to improved USCIS practices and policies. This includes President Biden’s order relating to artificial intelligence, which directed immigration agencies to facilitate nonimmigrant and permanent residence pathways for AI and STEM talent.
What to Expect - The intent of these rescissions is likely to restore immigration processing back to where it was at the end of the Trump administration - plagued by USCIS processing delays, increased RFEs and denials, unclear adjudication standards, lack of interagency communication, additional bureaucratic hurdles (no more interview waivers, biometrics reuse, or concurrent filing), extreme vetting delays during visa stamp applications, which generally make the processing of immigration benefits more unpredictable and hindered by delays and additional bureaucratic hurdles. It is also anticipated that the Trump 1.0 Public Charge rule will be reinstated (though this will not be immediate as it needs to go through the notice and comment rulemaking). President Biden’s October 2023, EO aimed at increasing legal immigration pathways for individuals working in STEM and AI had resulted in the creation of helpful policy guidance pertaining to adjudicating certain visa petitions for individuals in STEM fields (including O-1 and EB-1A petitions and National Interest Waiver petitions), as well as directives for consular officers to expedite the processing of visa applications for individuals work in STEM fields. It is anticipated that there may be changes to the USCIS policy guidance resulting from the EO’s rescission, as well as additional processing delays and security clearance delays during the visa stamp application process (further exacerbated by the “extreme vetting” EO discussed below).
Enhanced Vetting of Visa Applicants and Possible Future Travel Bans
Key Takeaways - This requires enhanced security screening and vetting of foreign nationals applying for U.S. visas, seeking entry into the U.S., or applying for other U.S. immigration benefits. The order requires that applicants for visas and immigration benefits be vetted and screened “to the maximum degree possible,” especially those coming from countries or regions with identified security risks. In addition, within 60 days, the State Department, Department of Homeland Security, Department of Justice, and Direct or National Intelligence are required to submit a report identifying countries for which entry restrictions may be recommended, and to determine whether the actions of individuals from these countries who are already in the U.S. may merit deportation.
What to Expect - This is expected to lead to more intensive screening for all foreign nationals almost immediately as well as the implementation of travel bans for individuals from certain countries. While it is not clear yet which countries will be recommended for entry restrictions, potential countries that could be included in a future travel ban include "recalcitrant" countries who do not accept their citizens who are being deported from the U.S. (including Venezuela, Cuba, Brazil, Nicaragua, Russia, Yemen, Iraq, Iran, Afghanistan, Pakistan, India, Laos, Cambodia, the Democratic Republic of the Congo, Ethiopia, and Eritrea) and countries currently designated as State Sponsors of Terrorism (including Cuba, North Korea, Iran, and Syria). It is also possible the administration could reinstitute the third iteration of the “Muslim Ban” which included five mainly Muslim countries (Iran, Syria, Yemen, Libya and Somalia) as well as North Korea and government officials from Venezuela.
Restrictions on Birthright Citizenship
Key Takeaways - This EO seeks to end birthright citizenship for children born in the U.S. after February 19, 2025, where neither parent is a U.S. citizen or lawful permanent resident. This includes children, both of whose parents are either undocumented or here in lawful nonimmigrant status (including B-1/B-2 visitors, F-1 student, H-1B, L-1, TN, O-1, etc.). The order prohibits all Federal departments or agencies from issuing or accepting documents recognizing United States citizenship or purporting to recognize the United States citizenship of impacted individuals.
What to Expect - This order is already facing multiple legal challenges in Federal Court, including by at least 18 U.S. states and the American Civil Liberties Union (ACLU) which argue that the executive order is unconstitutional and in violation of the 14th Amendment of the United States Constitution, U.S. federal law, and over 125 years of legal precedent confirming that, with very limited exceptions for the children diplomats, any child born on U.S. soil is a U.S. citizen regardless of the immigration status of their parents. At this early stage it is not yet known whether the EO will be temporarily blocked from implementation while the courts consider its legality.
UPDATE - on January 23 a Reagan -appointed federal district court judge in Seattle issued a 14-day emergency temporary restraining order which temporarily blocks the implementation of this EO calling it “blatantly unconstitutional.”
UPDATE.- on February 5th a Biden-appointed federal district court judge in Maryland issued a permanent injunction blocking implementation of the EO. The injunction applies nationwide and is more permanent than the temporary restraining order previously issued on January 23rd. Generally, preliminary injunctions remain in place until the case is resolved or they are overturned by a higher court.
America First Trade Policies
Key Takeaways - This directs federal agencies to review export control regulations and to assess unlawful migration from Canada, Mexico, and China, which is expected to lead to trade and national security measures that may affect employer-sponsored foreign nationals.
What to Expect - While it is too soon to assess the nature and scope of these policies, the prior Trump Administration renegotiated the North American Free Trade Agreement (NAFTA) into what is now the United States Mexico Canada Free Trade Agreement (USMCA). The TN visa classification for Canadian and Mexican nationals was included in the USMCA and was largely unchanged from NAFTA but it is unclear whether the Administration will seek to further alter the USMCA and whether this would have any impact on the TN visa.
Gender Identity Restrictions
Key Takeaways - This states that the U.S. government will recognize only two sexes (male and female) and directs agencies to implement changes to government-issued identification documents, including passports and visas, and government forms in accordance with this EO.
What to Expect - In the future passports, immigration application forms, green cards, and visas will likely preclude third-gender options, which are currently available on U.S. passports, certain immigration documents, and certain application and petition forms. These and other gender-identity restrictions are expected to face legal challenges.
Require Employment Verification
Key Takeaways - This reflects a focus of the Trump Administration, but not a change in law, which already requires employers to verify employees’ work authorization via the Form I-9 and E-Verify program.
What to Expect - While it’s possible that we will see increased enforcement action (including site inspections and I-9 audits) there is likely insufficient funding to drastically change current enforcement practices at this early stage in the Administration.
In addition to the orders summarized above, President Trump signed a number of sweeping orders focused on border enforcement, undocumented immigrants, and humanitarian programs. These include orders suspending the U.S. refugee program, terminating certain humanitarian parole programs, reinstituting the Remain in Mexico program, withholding funds from “sanctuary jurisdictions,” expanding expedited removal, suspending entry for certain individuals at the U.S.-Mexico border, and directing military resources to the U.S.-Mexico border. We do not anticipate that these will have a direct impact on business immigration but they do serve to demonstrate the broad, sweeping, and aggressive stance on immigration that the Trump Administration is taking from the President’s first day in office.
Note that this is an evolving situation and D&S will continue to provide updates as more information becomes available. Employers should seek legal counsel to review their immigration policies and ensure they understand how these and future changes could affect their current workforce and hiring practices.
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.