The U.S. presidential election has captured headlines, and the prospect of a change in administration has once again brought immigration policy to the forefront of national dialogue. Former President Donald Trump's recent statements regarding mass deportations and his previous track record on immigration matters have created concern among some businesses and their foreign national workforces. This alert provides context on business immigration policies only, and how employers and employees can prepare if similar policies return.
Immigration Under the Previous Administration
Between 2017 and 2021, the Trump Administration implemented a number of significant changes in immigration policy. Key among these was the "Buy American and Hire American" (BAHA) Executive Order issued in 2017, which reshaped the corporate immigration landscape. BAHA's stated aim was to protect American workers by enforcing stricter scrutiny on employment-based immigration programs. Its impact, however, often extended far beyond its intended targets, leading to:
- Increased H-1B Denials and RFEs (Requests for Evidence): The administration raised the bar for approving H-1B petitions, causing a surge in RFEs and a jump in denial rates. Employers faced costly delays, prolonged uncertainty, and heightened challenges in securing talent — especially for specialized roles.
- Heightened Visa Processing Standards and Delays: Many employment-based visa categories saw intensified vetting, including additional document requests and longer adjudication times. These slowdowns directly affected employers' ability to deploy key personnel and meet business objectives.
- Policy Shifts Affecting Permanent Residency (Green Card) Applications: The administration also reshaped adjudicatory standards for green card applications, including those for highly skilled workers, creating additional hurdles for permanent residency sponsorships.
What Could Happen Next?
While it is impossible to predict with certainty what specific policies a new Trump Administration would pursue, we can draw some inferences based on historical precedent and recent statements. First, any large-scale deportation initiative would face legal, logistical, and constitutional challenges. Nonetheless, employers should be aware that heightened enforcement actions, policy shifts targeting foreign labor, and stricter visa adjudications are quite possible.
Former President Trump's platform is likely to place renewed emphasis on "America First" principles, with potential echoes of BAHA-like initiatives. Corporate immigration may once again experience heightened scrutiny, particularly with regard to:
- Employment-Based Visas: Renewed emphasis on reducing the availability and use of work visas by enforcing stricter interpretations of "specialty occupation" requirements for H-1Bs or further prioritizing U.S. labor protection measures.
- Increased Compliance and Enforcement: Companies could face intensified worksite enforcement actions, audits, and immigration-related fines or investigations.
Remaining Prepared in Uncertain Times
Given the uncertainty for future immigration law and policies, preparation is key. Here are some steps companies and their employees may consider:
- Audit and Assess Current Immigration Portfolios: Employers should ensure all foreign national employees have updated, compliant records and are prepared for potential changes, processing delays, and/or heightened scrutiny.
- Evaluate Contingency Plans: Consider the implications of potential visa processing slowdowns or denials on key business operations, and develop contingency strategies for retaining or relocating critical personnel.
While these may be prudent measures, it is important to emphasize that we simply cannot predict the future with a high degree of accuracy. The form and pace of any policy changes are subject to political, legislative, and judicial processes; and predicting outcomes is only speculative. However, history and recent statements suggest that corporate immigration and legal pathways to employment for foreign nationals may again be in the spotlight.
Conclusion: Stay Informed, Stay Prepared
Employers and employees are rightly concerned about potential immigration policy changes, but by staying informed and taking proactive steps, we can better navigate any forthcoming challenges.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
