Preparing for Anticipated Immigration Challenges under a Trump Administration
With the re-election of Donald Trump and upcoming inauguration on January 20, 2025, employers can anticipate significant changes to U.S. immigration policy that may impact their business and foreign national employees. Although the exact policies to be implemented by the incoming administration are not known, using his prior administration policies such as “Buy American, Hire American” and campaign promises as a guide, there likely will be a renewed focus on compliance and limiting various legal immigration programs. The prior Trump administration implemented changes with wide-reaching impacts, affecting everything from border security and asylum processes to employment-based immigration and travel bans. Although the exact impact of a second Trump presidency remains to be seen, the most likely areas of focus include the following:
1. Employment-Based Petitions & Specific Visa Categories
- Increased scrutiny and higher denial rates across all employer-sponsored visa categories, with a specific focus on the H-1 and L-1 program is expected. Additionally, as it relates to the H-1B program specifically, expect a renewed attempt to significantly increase the wage requirements and narrow job requirement definitions to limit eligibility.
- Rollback of regulatory authorization of employment authorization categories including Optional Practical Training for F-1 students, work authorization for certain H-4 spouses, and the ending of humanitarian programs such as Unite for Ukraine, Temporary Protected Status, and DACA.
- Reversal of NIW guidance re: STEM graduates. The Biden administration introduced guidance related to National Interest Waiver (NIW) green cards in 2022, creating more options for STEM graduates to file an NIW petition. This guidance is likely to be reversed or tightened making this path not as viable for applicants.
2. Increase in Compliance Oversight
- Increased Audits and Site Visits are expected which may include measures to enforce I-9 compliance, visa compliance and increased worksite audits.
- More strict interpretation and investigation by U.S. Citizenship and Immigration Services (USCIS) and Department of Labor (DOL) into wage levels, job descriptions, and recruitment efforts.
3. Travel and Border Issues
- Reinstatement of previous travel bans based on nationality or ideological grounds are expected, which may also be expanded.
- Increase in resources for border security may result in stricter enforcement and deportation measures.
- Difficulty with visa issuance at Consulates/Embassies abroad is possible at the visa interview as well as at the border upon entry.
Preparing for these Changes: Employers can take practical steps to prepare for the likely changes that are coming.
- Audit Compliance Records. Review and update I-9 forms and public inspection files to ensure your documentation is up-to-date and in compliance in the event of any future audits or investigations.
- Communicate re: Potential Travel Issues. Foreign national employees may be impacted by a travel ban or visa issuance complications at Consulates/Embassies abroad. Avoiding unnecessary travel after January 20, 2025, may be advisable particularly for those who were impacted by the initial travel ban as it may go into effect quickly, and without warning.
- Green Card Filings. NIW filings and prevailing wage requests should be prioritized where possible to avoid any disruption in adjudications due to policy changes or prevailing wage calculations.
- Consult with immigration counsel. For any specific questions or guidance related to the potential impacts or risk mitigation, please contact MVA attorneys for assistance.
Our firm will continue to closely monitor developments and will publish new material as the new administration refines its immigration platform.