The U.S. President-elect has placed immigration at the forefront of his campaign agenda, and it is expected that U.S. corporations and the business community will experience increased challenges when seeking to hire and retain foreign talent. While the U.S. immigration system will remain effective and in place, further restrictions and the tightening of regulations, as with the President-elect's first administration, are likely to be implemented.
This alert summarizes the challenges that employers will likely confront when accessing foreign talent under the new administration, as well as outstanding issues for the current administration to resolve before leaving office.
Changes that are likely under the new administration include:
- Entry restrictions, including travel bans and more intense security screenings at consular posts and at U.S. ports of entry, are expected as early as Inauguration Day in the form of an Executive Order.
- Immigration-related labor enforcement is expected to rise at the Department of Homeland Security, Department of Labor, and the Department of Justice. We expect to see increased audits for I-9 compliance, H1B and L1 site visits, LCA Department of Labor Audits, and “Hire American” policies—which will ultimately attempt to limit foreign talent. Further, the President-elect has indicated that he will introduce deportation initiatives aimed at undocumented individuals.
- Department of Justice investigations, regarding discrimination against U.S. workers.
- ‘Extreme vetting’ initiatives will be immediately implemented, like during the President-elect’s first term. The new administration will also suspend some of the Biden-era initiatives, including the pro-STEM regulations for foreign students and others applying for U.S. immigration benefits.
- Delays in onboarding foreign workers will include additional procedural requirements, additional USCIS (U.S. Citizenship and Immigration Services) requests for evidence, slower processing times, and higher rates of denial domestically and at consular posts.
- Humanitarian programs may be terminated or not be renewed, including DACA (Deferred Action for Childhood Arrivals), TPS (Temporary Protected Status Program) and other parole programs. It is expected that any cancellation of these programs will be challenged in the federal court system.
Outstanding issues for the current administration to resolve before January 20, 2025 include:
- “Surge” resources issued to USCIS to eliminate the backlog of employment authorization documents (for new arrivals and non-citizens) and use the $34 million that had been set aside to utilize new technology, staffing increases, and greater use of overtime.
- H-1B Modernization Rules – USCIS is being asked to finalize more of the “Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrants Worker Rule.” This rule, proposed in 2023, would codify into regulation some pro-business guidance for F-1 students and the H-1B regulations, including:
- Expanding cap-gap for foreign students
- Expanding the definitions of “nonprofit research organization” and “government research organization” for H-1B cap-exempt organizations – thus giving more options for U.S. employers to qualify as H-1B petitioners not subject to the H-1B mandatory cap
- Permitting date flexibility regarding H-1B petition start dates
- Eliminating itinerary requirements for certain H-1B petitions, and codifying USCIS deference policy in the regulations
- Instituting change to the H-1B lottery system to assure it is immune from those wishing to take advantage of the system by filing multiple applications and circumventing the H-1B pre-registration rules.
The months ahead will entail significant change for immigration-related matters. Our team will continue to monitor these and other changes and keep you updated through future alerts like this one.
