The 2024 Presidential Election is over, and Donald Trump will become the next President of the United States in January 2025. What will be the impact on U.S. immigration? What should U.S. employers, who sponsor foreign nationals for U.S. immigration benefits, anticipate? How should U.S. employers prepare? This article provides a list of potential actions that the incoming Trump administration might take. Our list is drawn from the actions and/or efforts of the first Trump administration, the Heritage Foundation's 900-page document, entitled "Project 2025," as well as other sources:
- Rescind the 2021 USCIS policy instructing officers to give deference to prior petition adjudications, as well as other USCIS policy guidance issued under the Biden Administration.
- Re-instate the 2018 USCIS policy guidance, which granted officers discretion to deny petitions and applications without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny NOIR), for innocent mistakes. (Note: It may now be advisable for employment-based Green Card applicants to maintain nonimmigrant status during the entire period that their Green Card application is pending.)
- Overall increase in the issuance of Requests for Evidence (RFEs), Notices of Intent to Deny (NOID), Notices of Intent to Revoke (NOIR), and denials.
- Reduce the validity period of petition approvals. (Note: Employers would want to make sure Statements of Work, Purchase Orders, etc. are up to date).
- Reduce the validity period of Employment Authorization Documents (EAD) and Advance Parole documents.
- Increase USCIS filing fees for applications and petitions.
- Impose additional USCIS filing fees.
- Adopt a strict rejection policy if petitions and applications are incomplete.
- Require USCIS Fraud Detection and National Security (FDNS) to conduct security checks on all petitions and applications before approval notices are issued. (Note: This could increase processing times.)
- Require all Green Card applicants to be interviewed, including employment-based Green Card applicants. (Note: This will increase processing times.)
- Restructure various agencies such as the U.S. Department of Homeland Security (DHS), U.S. Immigration and Customs Enforcement, and U.S. Customs and Border Protection (CBP).
- Retrain agency workforce to emphasize fraud detection, rather than speed in processing.
- Spearhead legislative efforts to create a merit-based immigration system that rewards high-skilled workers.
- Have the U.S. Department of Labor (DOL) publish a rule to increase and/or transform the wage level system that is used in the H-1B, H-1B1, E-3 and the PERM labor certification programs.
- Make the H-1B category harder for foreign nationals to qualify.
- Make E-Verify mandatory for all employers.
- Make premium processing available to other petition and application types in order to generate revenue.
- Pause intake of petitions and applications in a benefit category when backlogs in that category become excessive.
- Impose travel ban restrictions and/or restrictions with respect to the issuance of visas.
- Eliminate the STEM-Operational Practical Training Program (OPT),
- Increase I-9 audits.
- Increase USCIS site inspections with respect to the H and L programs.
- Increase U.S. Department of Labor (DOL) Wage and Hour Division audits and/or investigations.
- Have the U.S. Department of Justice focus on claims of discriminatory practices against U.S. workers by U.S. employers.
- Increase in DOL PERM audits and PERM cases selected for supervised recruitment.
- Increase in background checks, biometrics gathering, security screenings, etc., which may cause processing delays.
Besides taking action which could impact employment-based immigration in the U.S., the new Trump Administration will likely focus an even greater part of its efforts on limiting family-based immigration and humanitarian immigration benefits (examples: Asylum, Temporary Protected Status (TPS)). Some of these actions could impact nonimmigrants and their families employed by U.S. employers, depending on the particular facts and circumstances of the foreign national. Some of these measures the new Trump Administration may take could be the following:
- Eliminate the Immigrant Visa Diversity Lottery program.
- Repeal Temporary Protected Status (TPS) designations.
- Re-instate the "Remain in Mexico" policy that would require asylum seekers arriving at the U.S. – Mexico border to wait in Mexico while their asylum claims are processed, or promulgate a rule that would restrict asylum eligibility, or bar foreign nationals from applying for asylum.
- Re-Instate the Public Charge Rule.
- Reduce the number of refugee admissions to the U.S.
- Authorize state and local law enforcement authorities to participate in border-security actions.
- Eliminate the Deferred Action for Childhood Arrivals (DACA) program.
- Carry out mass deportations of undocumented foreign nationals, as well as accelerate removal and expedited deportations.
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.
