With the election of former President Trump to a second term, it is well understood that changes are on the horizon across the U.S. immigration system come January. Trump and his advisors have been vocal about their intentions to curtail U.S. immigration, and while much public attention remains on border security and proposals for mass removals of the undocumented population, significant impacts to lawful immigration pathways are also expected. Drawing from the policies of Trump’s first term and the proposals outlined in Project 2025, it is clear that reforms targeting employment-based and other legal immigration processes are forthcoming, signaling a more restrictive environment ahead.
During his first term, Trump’s immigration advisors and agency leadership introduced a range of policies designed to complicate the legal immigration process. By increasing delays, fostering confusion, and heightening the rate of denials, the system became more burdensome and costly for U.S. employers and their sponsored employees, as well as for individual applicants. This added more complexity to an already strained system, making it even more difficult for many to navigate.
Looking ahead to 2025 and beyond, common forms of employment-based sponsorship such as the H-1B will likely face renewed scrutiny and restrictions. In contrast, classifications for individuals with extraordinary or exceptional ability may continue to offer stability in the years ahead. These pathways for highly accomplished professionals, specifically the EB-1, EB-2 National Interest Waiver (NIW), and O-1 options, recognize an individual’s significant contributions to their field and therefore align with the first Trump administration’s focus on merit-based immigration. While no one can be certain how the policies of a second Trump administration will unfold following Inauguration Day, the impact on these categories may be minimal by comparison.
By way of background, EB-1 classification provides a path to U.S. permanent residency (i.e., the green card) to individuals who are at the top of their fields. Divided into three subcategories, the EB-1 pathway provides a streamlined process for individuals of extraordinary ability, outstanding researchers and processors, and certain multinational managers and executives to secure permanent status in the United States. Such petitions must be supported by extensive documentation of the individual’s achievements and impact and, depending on the subcategory the individual is applying under (EB-1 A, B, or C), they may or may not need a U.S. employer to sponsor them.
The EB-2 NIW is a more flexible immigrant visa category that waives the requirement of a job offer if the applicant’s work is deemed to be in the national interest. This allows the applicant to avoid the lengthy and cumbersome labor market test, which is required for the PERM process. The NIW is well suited to entrepreneurs, researchers, and professionals in emerging fields as well as individuals who are still early in their careers and cannot yet document the sustained accomplishments needed for an EB-1. While the eligibility criteria are slightly less stringent than those for EB-1, individuals must still demonstrate substantial contributions.
The O-1 is a temporary classification that allows individuals of extraordinary ability in the sciences, arts, education, business, or athletics to work in the United States. It shares similar eligibility criteria with the EB-1A, but is an employer-sponsored status intended to facilitate temporary employment in the United States. Commonly referred to as the Einstein Visa in media, the O-1 provides initial approvals for up to three years, with extensions available for ongoing projects.
In addition to aligning with “merit-based” immigration preferences espoused by many in Trump’s circle, these classifications can offer stability to individuals and their employers when considering restrictive policies likely to be implemented during a second term. For example, many common employment-based immigration options in the U.S., including the H-1B and PERM labor certification, feature prevailing wage requirements that came under significant scrutiny under the first Trump administration. Although the evidentiary threshold for the O-1, EB-1, and NIW options is higher, none of these categories requires the payment of a prevailing wage by a sponsoring employer. Moreover, several of these options, specifically the EB-1A and NIW green card pathways, allow an individual to self-sponsor for permanent residence, providing a pathway to permanent residence that is not tied to any particular employer and thereby offering more stability to successful applicants.
Although the requirements for these extraordinary categories align with the “merit-based” immigration strategy preferred by the incoming administration, it does not mean the categories will be immune to the system-wide disruptions expected. For instance, in the NIW context, it is possible the new administration may move away from favorable Biden-era guidance prioritizing the approval of national interest waivers for individuals with advanced STEM degrees and those working with Critical and Emerging Technologies – such as artificial intelligence. Since 2022, these NIW policies have led to an uptick in filings and favorable outcomes, and the reversal of this guidance would signal a return to a more restrictive environment, with increased denials and requests for evidence (RFEs) expected. When considering EB-1s, it is likely that restrictive policies in other areas may push more applicants to try to secure an EB-1 approval, increasing backlogs in the category and likely higher requests for evidence and denial rates.
In the O-1 context, absent regulatory change by the current administration, it is likely that USCIS “deference” to prior determinations of eligibility will be paused. Should the agency move away from deference, the issuance of burdensome RFEs is likely to increase for O-1 extension petitions, as the new administration seeks to carefully vet the qualifications presented in every case.
Regardless of visa type, processing delays are also likely to be a major issue. Historically, underfunding and understaffing have plagued immigration agencies responsible for adjudicating petitions. This problem is likely to worsen considering expected policies that prioritize enforcement over efficient processing. Even high-net-worth investors in the EB-5 program and extraordinary visa category applicants, which remained largely unaffected four years ago, are likely to face significant processing times and increased scrutiny of filings, creating uncertainty for employers, employees, and investors.
Having a seasoned and knowledgeable immigration attorney can be an invaluable asset, especially during periods of heightened scrutiny and policy shifts. Attorneys with extensive experience handling EB-1, NIW, and O-1 cases and navigating the complexities of Trump’s first term are well-equipped to anticipate challenges and develop effective strategies. Their insight and preparedness can help applicants build strong cases, minimize risks, and maximize their chances of success, even in an increasingly restrictive environment.
The material contained in this article does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
Reprinted with permission from the December 7, 2024 edition of The Legal Intelligencer© 2024 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 – reprints@alm.com.
