The Trump Administration will take the reins of a vast federal immigration system in just a few weeks. Where exactly it will drive the teams that pull this bureaucracy, the immigration officers, attorneys, and judges, remains to be seen. But if the past offers any indication of the future, there are some predictions we can make from the first time the Trump Administration sat in the driver's seat.
Travel bans:
A ban preventing foreign nationals from certain countries from
entering the United States was an early piece of executive action
under the first Trump Administration. Seven majority-Muslim
countries were first placed on this list: Iran, Iraq, Libya,
Somalia, Sudan, Syria, and Yemen. Ensuing litigation led to change,
adding to the list Chad, Venezuela, and North Korea, and removing
some of the initial seven countries. Travel bans are likely to make
a reappearance under the second Trump Administration. However, it
remains to be seen whether they will be country-specific or based
on other criteria, such as targeting foreign nationals with certain
categories of temporary visas. Foreign nationals already in the
United States should consider the risk of travel bans before they
undertake travel, and their employers should be aware of possible
employment disruptions that travel may cause.
Adjudication – delays and policy
changes:
The first Trump Administration witnessed adjudication delays for a
range of applications for immigration benefits. Delays were
accomplished through a variety of tools: placing more scrutiny on
benefit applications by issuing Requests for Evidence and Notices
of Intent to Deny with increased frequency; requiring all
applicants to attend biometrics appointments; reducing eligibility
for accelerated decisions through premium processing; and delaying
the issuance of visas at consular post by conducting extensive
review, referred to as administrative processing. The first Trump
Administration also effected policy changes on a case-by-case basis
through novel interpretations of regulatory and statutory
provisions. This policy shift was not necessarily announced as a
formal change but was only discernable through a review of
adjudication trends. The best way for employers and foreign
national workers to prepare for these changes is to file
applications early, brace for bumps along the way, and plan
fallback strategies early and often.
Revocation of Biden Administration
policies:
Many immigration benefits derive from policies that can be changed
relatively easily from one administration to the next. For example,
the Biden Administration expanded employment authorization for
spouses of foreign nationals in E-2, H-1B, or L-1 status, temporary
status relating to employment-based sponsorship. These spouses were
authorized to work incident to their derivative status, i.e., E-2S,
H-4, or L-2S status, without the need to file separately for work
authorization. Their continued eligibility to work incident to
their status may be placed in jeopardy by changes in policy.
Employers and foreign national workers should consult with an
attorney to determine whether the benefits they currently hold
derive from a policy that may be revoked with little or no
notice.
Termination of humanitarian benefits:
The immigration system affords certain temporary benefits including
employment authorization through Temporary Protected Status (TPS),
Humanitarian Parole, and Deferred Action for Childhood Arrivals
(DACA), among other humanitarian programs. The Trump Administration
has indicated that it will target these programs for review and
restriction. To prepare, employers should assess their reliance on
workers with these classifications through a self-audit, evaluating
the likelihood they will see disruptions in their workforce.
Foreign national workers should consult with an attorney to
determine whether they have any other options to acquire lawful
status in the United States.
Enforcement and investigative
action:
The Trump Administration has announced plans for increased removal
enforcement and investigative action through I-9 audits, site
visits, and worksite raids. The rights and responsibilities of
employers and their workers depend on the exact type of enforcement
or investigative action they are facing. Employers can prepare by
ensuring that their HR and management personnel are aware of their
rights and have a plan in place tailored to the appropriate
circumstances.
Regulatory reform:
The Trump Administration appears ready to focus efforts in this
regard on raising the wage required for employers to sponsor
foreign national workers for temporary status through the H-1B
program and permanent resident status through a wage and market
test referred to as PERM. The administration may also make changes
in the eligibility of foreign national students to acquire
authorization to work through Occupational Practical Training
(OPT), a program that affords foreign national students one year of
work authorization after completing a degree at U.S. institutions
of higher education and a further two-year extension for students
in a STEM field. Employers and foreign national workers who use the
H-1B, PERM, or OPT programs should be aware of these likely changes
and begin formulating response strategies on a case-by-case
basis.
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.