Introduction
On November 5, 2024, following the United States ("U.S.") presidential election, Donald Trump was elected for a second term in a victory over current Vice President Kamala Harris, having served as the 45th president from 2017-2021. One hot topic during the presidential campaign was Trump's stance on immigration. With the presidential inauguration set for January 20, 2025, it is important for employers and members of the business community to review the President-Elect's immigration policies during his first term, to better plan for the reality under the new administration.
Immigration Policies Under the Republican Administration From 2017 to 2021
During Donald Trump's term from 2017 to 2021, specific objectives were set out early on to address issues related to immigration. The objectives sought out by Trump's immigration agenda notably included:
- Building a wall at the border separating Mexico from the U.S.;
- Reducing and sanctioning illegal immigration;
- Ending social programs established to protect unauthorized immigrants;
- Introducing a travel ban and increasing vetting for entry to the U.S.
Two objectives which the Trump Administration carried out during the 2017 to 2021 term that largely impacted the business community are the goals to render jobs and public benefits unavailable to unauthorized immigrants and to reform the legal immigration system.
To reach its objective of turning off the "Jobs and Benefits' Magnet", the Trump administration tried to expand the use of E-Verify by employers. As an employment authorization verification system, E-Verify allows employers to check whether potential hires are eligible to work by verifying their names and identity data against federal databases. Although no legislation was adopted to enforce the wide use of E-Verify across the states, the administration's executive order and public encouragement still led, during 2017, to the number of employers using E-Verify to increase by 64,739 to reach a total of 760,499.1
In 2017, the administration also issued an executive order entitled "Buy American and Hire American" to put forward measures that would prioritize giving jobs to U.S. citizens instead of foreign workers.2 Through this order, the administration in collaboration with the U.S. Citizenship and Immigration Services ("USCIS") and the U.S. Department of Labor increased their scrutiny regarding employment visa applications and intensified their efforts to ensure visa holders within the country were respecting the terms of their visas. These measures specifically targeted the H- 1B visas for skilled workers, as well as student visas.
With respect to H-1B visas, USCIS issued policies to exclude entry level computer programmer positions from qualifying for the visa.3 Furthermore, during several periods from 2017 to 2021, USCIS suspended premium processing which allows employers or foreign nationals to pay an additional fee to have their application processed within 15 days instead of a year or more. USCIS also rescinded its deference policy which allowed them to process renewal of visa applications based on prior approval of visas and stopped related companies from filing multiple H-1B cap petitions for the same incoming worker. The latter was a strategy used by some employers to increase the odds of receiving H-1B visas in the annual lottery.4
Other efforts were made by USCIS to prioritize high-wage positions under the H-1B visa program. For example, the H-1B visa lottery was modified to prioritize applicants with advanced degrees specifically at the second round of drawing.5 This change in 2019 resulted in an 11% increase in the number of selected applicants with master's degrees or higher.6 To push U.S. employers to hire more American workers, the Department of Labor also increased salary requirements applicable to foreign workers.
Finally, USCIS partnered with the Department of Labor to share data concerning possible misconduct by employers engaged in H-1B visa schemes.7 This granted USCIS the authority to send potential violation cases to the Department of Labor's Office of Foreign Labor Certification whenever signs of program misuse were detected during their evaluation or during work-site checks.
Other changes that were made under the administration's immigration policy include:
- Allowing labor unions to submit positive or negative advisory opinions regarding applicants for O or P visas (visas for individuals with extraordinary ability or achievement in sciences, arts, education, business, athletics, or entertainment, and for athletes, artists, entertainers, and their essential support personnel) directly to the USCIS.8
- Creating the OPT Employment Compliance Unit to investigate employers' compliance with working conditions and compensation requirements. The Unit was able to send recommendations to ICE about workplaces that needed to be investigated.9
Expected Immigration Policies under the Incoming Trump Administration
Since the recent election, several stakeholders and scholars in the field of immigration have made their predictions regarding what to expect in matters of immigration.
President Trump also shared elements of his immigration plans during his campaign, including his goal to proceed with a mass deportation of illegal immigrants in the United States. This objective will translate into many concrete regulations, one of them being to implement stricter border measures.10 The incoming president also shared his goal to prioritize giving jobs to U.S. workers instead of foreign individuals. Employers and members of the business community can expect the following changes, several of which resemble what was initially implemented under the first Trump administration:
- Increased Limits on Employment Visas
Similarly to what was done from 2017 to 2020, the Trump administration is likely to adopt policies and executive orders to increase the requirements to apply for an H-1B visa, slow the processing time for applications and establish a cap on the number of visas that can be issued within a year.11 President Trump could also reintroduce severe wage requirements which would discourage employers from hiring foreign workers instead of Americans. Policy changes may also affect other employer-sponsored visa programs such as L-1 intracompany transfers, O and P, TN, E-3 professionals, and others.
- Increase in Workplace Compliance and Worksite Raids
In their efforts to uncover illegal immigrants and proceed with their deportation, the Trump administration and its partners, the U.S. Department of Labor and USCIS, may conduct a higher number of workplace audits and inspections to verify whether employers are respecting their job requirements, have violated their I-9 form requirements or have proceeded with the verification of the work authorization for their foreign employees. In cases of violation, employers can expect civil monetary and criminal penalties as well as the termination and possible deportation of the employees who are discovered to have irregular status. Furthermore, under the conduct of these investigations, it is possible that many foreign workers with regular status may still be negatively impacted.12
- Introduction of Limits to Work Authorization for Students
Similar to what he implemented in his first term, President Trump may introduce policies to limit work authorization such as the Optional Practical Training for F-1 students. Without an option to pursue work alongside or after their studies, international students may reassess their plans to complete their studies in the United States.
- Increased Surveillance at the Border
Due to the stricter measures that will be enforced at the U.S. border, employers should expect disruptions to their and their employee's business travels such as bans on individuals from certain foreign countries. Increased scrutiny at consular visa interviews may make it more challenging to plan business travel, cross-border hiring and travel for foreign nationals already employed in the country who wish to re-enter the U.S.
To address concerns related to immigration reforms, there are various measures employers can take to better prepare for what is to come.
Best Practices for Companies and Members of the Business Community
- Advocate at the local, state and federal levels to demonstrate the business need for foreign workers;
- Ensure that all I-9 forms and supporting immigration documentation are in conformity with immigration regulations and perform an audit of current internal compliance programs;
- Review recruitment policies to ensure the job descriptions listed, the wage and the general requirements are in conformity with immigration regulations;
- Establish a plan of action and inform employees on how to prepare for work site investigations;
- Stay updated on immigration policies and consult immigration lawyers to better address current and future workforce needs as well as compliance with immigration regulations.
Footnotes
1 "Trump's First Year on Immigration Policy: Rethoric vs Reality", Migration Policy Insitute, January 2018, https://www.migrationpolicy.org/sites/default/files/publications/TrumpFirstYearImmigrationPolicy_FINAL.pdf
2 "Four Years of Profound Change: .Immigration Policy During the Trump Presidency" Migration Policy Institute, February 2022, https://www.migrationpolicy.org/sites/default/files/publications/mpi-trump-at-4-report-final.pdf, p.129
3 USCIS, "Rescission of the December 22, 2000 'Guidance Memo on H1B Computer Related Positions'" (policy memorandum, March 31, 2017).
4 USCIS, "Matter of S- Inc., Adopted Decision 2018-02 (AAO Mar. 23, 2018)" (policy memorandum, March 23, 2018).
5 USCIS, "Registration Requirement for Petitioners Seeking to File H-1B Petitions on Behalf of Cap-Subject Aliens," Federal Register 84, no. 21 (January 31, 2019): 888–957.
6 Rani Molla, "New Immigration Rules Could Prevent Our Next Elon Musk," Vox, April 15, 2019
7 Department of Labor, "U.S. Department of Labor and U.S. Department of Homeland Security Enter into a Memorandum of Agreement" (news release, July 31, 2020); Memorandum of Agreement between DHS USCIS and the Department of Labor, Employment-Based Petition, Labor Certification, and Labor Condition Application Data, July 30, 2020.
8 USCIS, "USCIS Now Accepting Copies of Negative O Visa Consultations Directly from Labor Unions" (news release, September 14, 2018); USCIS, "USCIS Now Accepting Copies of Negative P Visa Consultations Directly from Labor Unions" (news release, February 8, 2019). In the first six months of implementation, less than 1 percent of O petitions filed contained a negative advisory opinion, resulting in seven denials and three grants being revoked for ineligibility. See letter from Ken Cuccinelli II, Acting Director, USCIS, to Jennifer Dorning, President, Department for Professional Employees, AFL-CIO, October 16, 2019.
9 ICE, "New SEVP Unit to Oversee Employment Compliance in the OPT Programs and Report on Impact on U.S. Workers" (broadcast message, January 13, 2021).
10 Priscilla Alvarez and Phil Mattingly, "Mass detention and returning migrants to Mexico: Donald Trump's plans on immigration are coming into focus", CNN (November 16, 2024), online: (https://www.cnn.com/2024/11/16/politics/donald-trump-immigration-plans/index.html )
11 Stuart Anderson,"Past H-1B Visa Policies Predict Donald Trump's Immigration Policy", Forbes (November 10, 2024), online: (https://www.forbes.com/sites/stuartanderson/2024/11/10/past-h-1b-visa-policies-predict-donald-trumps-immigration-policy/ )
12 Cornell University Education, Panel discussion, "Immigration Reform in 2025: What Is Possible?", November 20th 2024.
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