Since former President Donald Trump won re-election, there has been a flurry of speculation about what to expect during his second administration. While there is much we don’t know, his first presidency offers clues regarding his likely outcomes concerning business immigration. We expect actions will be swift and the repercussions will be far-reaching. While no industry will be immune, businesses, academic institutions, religious organizations, and individuals that hire and maintain foreign talent in the U.S. on temporary visas, such as H-1B, L-1, E-1/E-2, and TN, may be most affected.
Anticipated Immediate Changes under a Second Trump Administration on Immigration, Visa and Citizenship Policy
Businesses should expect a major paradigm shift related to immigration, including the availability and processes for employment-based visas. While we don’t know the full breadth of actions the second Trump administration will take, we do have indications of likely outcomes. Based on his first presidency, campaign promises, and surrogate rhetoric, we can expect the following:
- Immediate and widespread use of executive orders and agency guidance to restrict employment-related visas and ramp up enforcement. We expect President Trump to (i) reinstate travel/entrance bans from predominantly Muslim countries, (ii) limit the admission of H-1B and L-1A visa holders, (iii) increase the use of “extreme vetting” of visa applicants at U.S. embassies and consulates overseas, making overseas travel for noncitizens fraught with risk, (iv) limit H-4 employment authorization for spouses of H-1B professionals, (v) restrict the issuance of student and exchange visas, including F-1 academic and J-1 exchange visitor visas, and (vi) limit the number of refugees. Each of these actions will profoundly impact businesses by making it more difficult for them to hire and retain noncitizen professionals. Additionally, restrictions on academic visas will remove a substantial revenue source for colleges and universities.
- Restrictive USCIS adjudication of nonimmigrant and immigrant visa petitions, including H-1B, O-1A/B, EB-1, and National Interest Waiver (NIW) matters. We expect USCIS to issue and re-issue guidance and regulations, leading to a stricter adjudication process for employment visas. As a result, it will be more difficult and less certain for employers to maintain key employees. This includes agency pushback through loss of deference to previous agency approval of visa petitions, Requests for Evidence (RFEs) and higher denial rates. The EB-1 and NIW categories, in particular, enable highly accomplished noncitizen professionals to enter and work in the U.S. more quickly and easily because of the significant benefit they provide to the country. Employers are well advised to develop strategies to overcome the restrictions so they may continue to hire and maintain critical professionals in shortage occupations.
- Adjudication delays. It is possible that the administration will reduce the availability of, pause, or cancel “Premium Processing,” which offers companies the option of expedited adjudication of certain visa petitions. Premium processing is often essential for businesses to attract, onboard, and retain top talent by giving businesses more control over otherwise extensive processing times for petitions. We expect the administration to add to the delay that has plagued the PERM and Consular processes.
- A robust use of the Public Charge Rule. This rule is a set of guidelines that immigration officials used during the first Trump administration, which, at bottom, required a green card applicant to prove they are not likely to rely on government resources. We expect the Trump administration to again broaden the use of the Public Charge Rule in a way that may make it too onerous and cumbersome for many employment- and family-based immigrants, including the spouses of U.S. citizens, to obtain green cards.
- Mass deportation and detention of noncitizens will directly impact businesses and their U.S. citizen workers. Most undocumented immigrants live in mixed immigration status families, which means that even if an employee is a U.S. citizen, their spouse and/or parent may be undocumented. President-elect Trump has promised an unprecedented mass deportation regime to begin shortly after his inauguration. The fallout of the expected mass round-up will impact the lives of scores of U.S. citizen workers and professionals who will likely seek assistance and/or advice from their employers. Businesses should have a plan to deal with the fallout of mass deportation.
How Businesses Can Prepare for the Expected and Potential Changes
We expect opposition from the business community to restrictive immigration-related executive orders, agency guidance, and legislative proposals that limit the ability of noncitizen professionals to enter and work in the U.S. Still, the extent and impact of that resistance are unclear. Nonetheless, there are steps businesses can take now to prepare for potential changes:
- Move quickly on visa petitions currently in the pipeline. If you rely on noncitizen professionals in your workforce, move quickly to obtain approval for new visa petitions and extend visa petitions for professionals whose authorization is expiring soon. At UB Greensfelder, we have several tested and effective strategies that can assist employers in the process of successfully hiring, retaining and protecting their foreign talent.
- Plan strategies for keeping DACA employees in the U.S. Businesses, nonprofits and academic institutions should start strategizing ways to obtain nonimmigrant visa status for DACA employees and keep them in the U.S. UB Greensfelder can assist with evaluating potential visa and unlawful presence waiver options and help applicants move through the process as quickly as possible.
- Prepare for an enforcement-heavy regime, including internal Form I-9 audits. Businesses should prepare for the impact of enforcement actions on their workforce. In addition to ensuring compliance with Form I-9 employment authorization verification requirements, businesses should make sure they meet the H-1B wage requirements and plan for government audits. Businesses should plan for potential disruptions to their workforce if workers are detained or subject to delayed visa processing due to “extreme vetting.”
- Prepare for travel hassles. When noncitizen employees travel, obtaining visas overseas and/or returning to the U.S. may involve delays, including “security reviews” and sudden travel bans affecting their ability to return to the U.S. Businesses should factor in potential travel delays associated with international business travel and transfers. Further, businesses should be prepared to act, where necessary, to protect essential noncitizen professionals.
- Provide resources to your employees. Many employees are fearful of what might be on the horizon. HR departments and legal counsel should offer resources to employees and other stakeholders. For instance, universities can host “Know Your Rights” teach-ins, or businesses can host open Q&A sessions with their employees.
