A Glimpse into the Trump 2.0 Business Immigration Landscape

Harris Beach Murtha PLLC
Contact

It is pretty clear what President-elect Donald Trump intends to do regarding border enforcement, honoring his pledge to launch the largest domestic deportation operation in U.S. history, but little has been reported on what Trump’s policy will likely be on “legal immigration” in his second term. While there has been wide speculation on how his policies will impact employment-based immigration, all we really can do on Trump’s 2.0 immigration landscape is forecast based on the lens of his prior action, as well as the bible of proposals in the Project 2025 manifesto authored by the Heritage Foundation, with significant input from Trump administration officials.

Rather than engaging in meaningful and permanent immigration reform, the Trump administration governed by executive action during his first term, taking more than 400 executive actions on immigration between January 2017 and July 2020. We experienced significant obstacles to obtaining work visas and green cards for foreign workers through the rapid erection of the “Silent Wall.” Under his administration, we witnessed a record-breaking number of visa denials, leaving U.S. businesses without the talent they need to succeed in a globally competitive economy. The administration also halted the issuance of green cards for applicants outside the United States. Some of these actions were the result of the global pandemic during the latter end of his term, however.

H-1B Denials Increased in Trump’s First Administration

After the Trump administration took office, the denial rate for initial H-1B petitions spiked to 24% for the 2018 fiscal year and 21% in 2019; meanwhile, denial rates for H-1B visa renewals went up 12% in 2018 and 2019. The H-1B program allows employers in the United States to employ foreign workers temporarily in “specialty occupations” – i.e., those that require the theoretical and practical application of a body of highly specialized knowledge and a bachelor’s degree or higher in the specific specialty, or its equivalent. H-1B skilled worker visas have long been the most commonly used visa for U.S. employers to employ foreign professional workers in the United States.

This spike in denials of H-1B extensions was the byproduct of the Trump administration’s USCIS policy guidance issued in October 2017. Pursuant to that policy memo, the agency rescinded prior guidance instructing adjudicators to give deference to prior determinations of eligibility by USCIS when deciding on petitions to extend nonimmigrant status. Under the new policy, USCIS confirmed the burden of proof remained on the petitioner at all times and urged immigration officers not to feel constrained in their ability to request additional evidence or to review and reassess eligibility in each case, regardless of any prior decisions in these cases.

In other words, petitions seeking to extend a previously approved status were now subject to the same scrutiny as brand-new petitions, despite the fact USCIS may have previously approved a petition based on the same exact facts – and sometimes on multiple occasions. This policy caused extensions of status for both H-1Bs and all other nonimmigrant visa types to become much less predictable, with no guarantees of approval. The Biden administration quickly rescinded this executive order upon taking office.

Major Actions on Employment-based Immigration in Trump’s First Term

Below is a summary of the major actions taken by the Trump 1.0 administration related to employment-based immigration that might provide a glimpse of what could quickly be reinstated under 2.0:

A spike in H-1B denials: USCIS will be much more restrictive on entry-level, lower-paying positions. H-1Bs for smaller entities (watch out founders and startups) could receive more Requests for Evidence (RFEs) and more general scrutiny.

Less “grace” after layoffs: currently, work visa holders get a 60-day grace period after layoffs. Under Biden, USCIS made it easier for these individuals to change to B-2 status to extend their runway and then switch back to H-1B when they found a job. We may expect any of these accommodations could go away, though it would be harder for Trump to remove the 60-day grace period, which is enshrined in regulation.

Renewed opposition to the H-4 Employment Authorization Document (EAD): Trump could renew opposition to the Obama-era rule that has survived many court-battles and rescission attempts over the years. It’s possible that the Trump administration could again try to rescind the H-4 EAD regulation.

Less STEM-forward approach: On balance, the Biden administration was uncommonly supportive of immigrants in tech (AI executive order, Science, Technology, Engineering, Mathematics (STEM) as a favorable factor for National Interest waivers (NIWs), accommodations for founders and startups in the H-1B context, etc.) While the Trump administration may be bullish on crypto and AI, it will likely not view immigrants as integral to meeting their goals here.

Foreign students: the Trump administration previously tried to enact several policies that negatively impacted F-1 international students. They could attempt to do so again (possibly eliminating STEM Optional Practical Training and limited Curricular Practical Training), creating a climate of uncertainty and anxiety for international students, potentially making the United States a less attractive destination for foreign talent. Trump also indicated he supported issuing green cards to foreign students who graduate from U.S. colleges or junior colleges, but later confirmed that such proposal would only apply to the most thoroughly vetted college graduates who would not undercut American wages or workers.

Increased Scrutiny on IT Consultancies: The administration may look more closely at consultancies placing employees at a third-party client locations and increase required documentation on the employer- employee relationship, itinerary and details about the specialty occupation.

More scrutiny on L-1 program: This is a nonimmigrant visa category allowing US employers to temporarily transfer key employees from their foreign offices to the United States.

More audits under Permanent Labor Certification (PERM) program: If the funding is cut for DOL, there will likely be even longer processing times for employment-based green cards.

Increased 221(g) denials: This means the applicant did not establish eligibility for a visa to the satisfaction of the consular officer at consulates.

NIW, EB-1A might become even more difficult: These are immigrant visas for individuals with extraordinary abilities, where it is the national interest to have them in the United States. The Request for Evidence rate on these requests is already high.

Temporary Protected Status (TPS) program might be in contention again: This program benefits those from countries experiencing armed conflict, environmental disasters or other extraordinary conditions. TPS recipients are granted work authorization, travel authorization, and protection from deportation.

Longer processing times all around: It would not be a surprise for wait times to increase.

Biometrics requirement for H-4 applicants could be reinstated: This would require spouses and children of temporary workers to document their relationship with fingerprints or DNA.

Stricter entry requirements for immigrants from certain countries: The Trump administration may target applicants from certain countries for increased scrutiny, such as certain Muslim countries, as was done in the first Trump administration (“Muslim Ban.”)

✅ More stress: Many of the little things could generally get harder and more frustrating. H-1B extensions could no longer be straightforward; visa stamping may become difficult and onerous; more interviews may be required for green cards; and processing times could increase as staffing are kept at low levels.

A merit-based system: Trump has indicated he will push for a “a merit-based immigration system that protects American labor and promotes American values.”

Visa restrictions: In his first term, Trump took steps to restrict access to some visa programs, including a suspension of many work visas during the COVID pandemic.

New rules to limit employers: The Trump administration could again try to implement a rule that would curb U.S. companies' use of skilled foreign workers, particularly in the tech industry, which officials said was necessary to protect American jobs amid mass unemployment triggered by the coronavirus pandemic. The prior joint rule from the U.S. Department of Labor and Department of Homeland Security would have significantly increased the minimum wages companies must pay to workers enrolled in the H-1B visa program. It also would have narrowed the definition of "specialty occupations" eligible for H-1B visas.

An end to Humanitarian Parole Programs: Trump has vowed to end Biden “parole” programs that allow hundreds of thousands of migrants with U.S. sponsors to enter the U.S. and obtain work permits, including Ukrainians and Afghans. He has called Biden's programs an "outrageous abuse of parole authority."

Roll back of Temporary Protected Status designations: Trump would likely seek to roll back TPS designations, targeting another humanitarian program that offers deportation relief and work permits to hundreds of thousands.

Eliminating Deferred Action for Childhood Arrivals (DACA): Trump attempted to end the DACA program that grants deportation relief and work permits to immigrant children brought illegally to the United States, but the termination was stifled by the Supreme Court in June 2020. Following the Supreme Court ruling, the Trump administration stopped accepting new applications to the program.

Re-introduction of the rule to eliminate H-4 EAD Work Authorization: The Trump administration first introduced this in April of 2019. It would eliminate an opportunity for spouses and children of H-1B workers to work in the United States while waiting for green card adjudication.

Re-introduction of the “wealth test:” By way of background, the Public Charge Final Rule was first implemented by the Trump administration on August 14, 2019, creating a wealth test for immigration benefits. That rule resulted in the creation of Form I-944, Declaration of Self-Sufficiency, a lengthy form required for anyone applying for permanent residency in the United States. The form required disclosure of all personal financial information, including all assets and liabilities; a credit report; tax returns; bank statements; and other financial documents. The I-944 Form required thousands of additional hours of work for applicants and their attorneys. It also required applicants for several immigration benefits to disclose whether they had ever accessed any public benefits.

Project 2025 Immigration Recommendations

While President-elect Trump distanced himself from the Heritage Foundation’s Project 2025 during the election process, it nevertheless was authored with great input from key members of his first administration and there is much speculation he would seek to implement many of its recommendations. Below are the key immigration provisions of Project 2025:

  • Project 2025 calls for suspending updates to an annual list of countries whose citizens can submit H-2A and H-2B temporary worker visas, which would affect agriculture, hospitality, forestry and construction employers that rely on them for workers. This would hit agriculture the hardest, as it could lose up to 10% of its workforce on some farms, according to the Niskanen Center, a libertarian think tank that scrutinized Project 2025. Refusing to update the list would mean that, after the expiration of the 2024 list, no countries would be eligible to participate in the program, thus grinding it to a halt.
  • Project 2025 recommends a cap the number of agricultural visas under the H-2A program, similar to H-2B.
  • Project 2025 calls for immediate rule-making affecting temporary work visas and employment authorization, along with a slew of other reversals of Biden's policies. The project states: "Internal efforts to limit employment authorization should be matched by congressional action to narrow statutory eligibility to work in the United States and mitigate unfair employment competition for U.S. citizens," the document states." The oft-abused H-1B program should be transformed into an elite program through which employers are vying to bring in only the top foreign workers at the highest wages so as not to depress American opportunities." This is a direct correlation to Trump’s prior initiative while in office.
  • Project 2025 recommends turning U.S. Citizenship and Immigration Service personnel into a security agency, thus requiring all workers to be vetted, compelling immigrants to apply more frequently for work permits, and an expansion of investigations into the background of potential workers. All would make obtaining benefits more time-consuming and increasing backlogs and processing times.
  • The Trump administration would likely make participation in the government’s E-Verify mandatory, requiring employers to determine eligibility for all employees to work in the United States.
  • Support a reduction in levels of legal immigration by 50% (formerly the “Raise Act.”)

Other Factors that Could Sway Policy

It should be noted, many powerful tech leaders and venture capitalists supported Trump and have his ear, and they believe in sensible business immigration policies. It will be interesting to see how Trump’s relationships with Elon Musk and other tech giants influence his business immigration policy. Interestingly, Tesla ranks in the top 35 of H-1B visa users, filing more than 1,738 Labor Condition Applications for H-1B petitions in 2024 alone. Amazon tops the rankings with 13,205, followed by Cognizant (13,077), Ernst Young (11,113), Google (9,919), Microsoft (7,819) and Apple (4,088). These employers have relied on the ability to bring in top tech talent from abroad for years and may be an influential factor in setting the administration’s legal immigration policy as a trade-off for the hardline stance on illegal immigration and the plan for mass deportations.

Also, much will depend on who is chosen to lead the Trump 2.0 Department of Homeland Security. If we see the resurrection of Trump’s chief immigration policy maker, Stephen Miller, who believes in restricting immigration across the board and is working hard to execute the policies articulated in the Project 2025 materials, we will likely see much of the restrictions noted above enacted. But much has changed with the economy, culture, and business landscape since Trump’s initial term, so there is no clear answer on exactly how the new administration will handle legal immigration once they address the border crisis, which was a large part of their campaign.

Businesses and immigration attorneys who lived through the immigration consequences of Trump 1.0 developed expertise in pivoting and very well may be required to do so again.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations. Attorney Advertising.

© Harris Beach Murtha PLLC

Written by:

Harris Beach Murtha PLLC
Contact
more
less

PUBLISH YOUR CONTENT ON JD SUPRA NOW

  • Increased visibility
  • Actionable analytics
  • Ongoing guidance

Harris Beach Murtha PLLC on:

Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide
- hide