By Sang M. Shin
With the re-election of former President Donald Trump, employers and international investors should prepare for significant changes in U.S. immigration policies. Based on his first term, campaign promises, and recent analyses, we can anticipate a range of actions that will impact business immigration. Below, we summarize potential Trump administration policies related to business immigration and provide key actions and considerations for employers.
Potential Trump Administration Policies
Increased Scrutiny and Higher Denial Rates
Expect heightened scrutiny and higher denial rates for H-1B and L-1 visas, similar to the previous Trump administration’s approach. Employers may face more stringent requirements for proving the necessity of foreign workers and adherence to wage standards. The administration may also target the H-4 EAD program, potentially rescinding work authorization for spouses of H-1B holders.
Increased Enforcement and Compliance
Heightened enforcement of I-9 Employment Eligibility Verification programs, non-immigrant and immigrant visa compliance, and worksite audits are anticipated. There may be a push for mandatory E-Verify for all employers to ensure employment eligibility verification.
Merit-Based Immigration
A legislative plan to focus on merit-based immigration, prioritizing immigrants who contribute to the economy over family or humanitarian-based immigration, is likely to be reintroduced.
Curtailment of Programs
Proposals to end Deferred Action for Childhood Arrivals (DACA) and Temporary Protected Status (TPS) programs will likely be introduced. Humanitarian parole programs and policies allowing large numbers of migrants from specific countries could be rolled back or ended. Changes in asylum policies for those inside and outside the United States are also expected. These programs have lawfully allowed for many foreign nationals to work in an authorized capacity in the U.S.
Travel Bans and Entry Restrictions
Similar to previous travel bans, entry restrictions based on nationality or ideological grounds may be reinstated or expanded, impacting business and work travel and international recruitment.
Impact on Specific Visa Categories
Policies affecting work authorization for spouses of H-1B holders (H-4 EAD) and international students (F-1 OPT) could be revisited, potentially limiting employment opportunities for these groups. The administration may also limit the availability of visa interview waivers for visa applications, resulting in longer visa wait times.
Key Actions and Considerations for Employers
1. Communicate with Employees and Provide Resources
Employers should communicate with their visa-holder employees through email or town-hall style meetings to keep them informed about potential changes and their implications.
2. Prepare for Increased Enforcement
Prepare for an enforcement-heavy regime, including internal Form I-9 audits. Ensure compliance with H-1B wage requirements and plan for government audits. Be ready to address potential disruptions if workers are detained or subject to delayed visa processing due to “extreme vetting.”
3. Review Compliance Protocols
Review I-9 and E-Verify compliance and protocols, and conduct internal audits, particularly if no such audit has been conducted in the past three years. Ensure equal treatment of U.S. workers compared to foreign workers.
4. File Petitions Early
Consider filing extensions and upgrading to premium processing for pending petitions as early as possible before the administration changes. Evaluate H-1B and H-4/EAD expiration dates and petition terms to understand timelines and risks for renewals.
5. Plan for Travel Delays
Factor in potential travel delays associated with international business travel and transfers. Be prepared to act to protect essential noncitizen professionals.
Conclusion
A second Trump administration will likely bring significant changes to U.S. immigration policy, with a focus on restricting and reducing legal pathways and increasing enforcement. Employers should proactively review their foreign national population to assess their immigration strategies, enhance compliance, and plan for potential disruptions in workforce planning.
The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for informational purposes only and does not constitute legal advice. For assistance, please contact an attorney in Jackson Walker’s Business Immigration & Compliance practice.
Meet Sang
Sang M. Shin is a business immigration attorney with broad experience managing immigration matters for companies, individuals, investors, and institutions through the U.S. and internationally. Sang handles a wide range of nonimmigrant visas and petitions and provides advanced and strategic advice to clients on a variety of immigrant visas and labor certification (PERM). Sang also helps foreign companies with their U.S. market entry, growth, and expansion efforts as they enter the United States by serving as outside counsel to their various legal needs.
Meet JW
Founded in 1887, Jackson Walker has played a vital role in the growth and development of Texas business. With over 500 attorneys, we are the largest firm in Texas. The Firm represents Fortune 500 companies, multinational corporations, major financial institutions, insurance companies, and a wide range of public companies and private businesses around the globe.
Our Business Immigration & Compliance practice provides integrated legal solutions to complex problems that permit our clients to achieve U.S. immigration objectives. The team’s experience ranges from foreign investors and business owners; international and domestic start-ups, small- to medium-size enterprises (SMEs) and public companies who employ individuals that need U.S. visa options to grow and expand their business; families who wish to live in the U.S. temporarily and/ permanently; and persons who wish to acquire U.S. citizenship.