Former President Donald Trump has been elected to a second term in the White House. Trump’s victory is sure to reshape immigration law and enforcement. With the first term in the rearview and a vocal campaign on the new administration’s policies, the immigration roadmap for a Trump presidency is not as uncertain as it was in 2016.
Donald Trump’s win marks an inflection point in U.S. immigration policy. Throughout his campaign, he reaffirmed his commitment to securing the U.S. border, reducing undocumented immigration, enhancing interior enforcement efforts, and increasing scrutiny of legal immigration pathways. For employers of foreign national workers, this means uncertainty during recruitment and onboarding, additional costs to overcome challenges to immigration filings and visa applications, and anxiety across their foreign workforce. The road ahead is clear and companies can prepare now to address the likely impacts. So, what should employers expect and how can they prepare?
Expansion of “Buy American, Hire American” Policies
Trump has consistently touted support for “Buy American, Hire American” policies. BAHA policies prioritize the employment of U.S. workers over foreign nationals. A second term is certain to see these policies reinforced, leading to stricter requirements for employers seeking to hire foreign nationals. These policies place pressure on companies to demonstrate that their hiring practices do not undermine job opportunities for U.S. citizens. Practically speaking, BAHA policies will surface in more aggressive investigations and audits by the U.S. Department of Labor (DOL) and U.S. Citizenship and Immigration Services (USCIS) into wage levels, job descriptions, and recruitment efforts.
Stricter Limits on Visa Sponsored Petitions
In tandem with BAHA policies, a second Trump term is likely to reduce the ability of employers to obtain work-sponsored visas for their foreign workers. The H-1B program in particular will feel the effects of new laws and regulations designed to limit H-1B eligibility and availability. This means greater scrutiny of petitions, a microscope on the actual requirements of the H-1B position, and ultimately, increased rates of Requests for Evidence and visa petition denials. During the prior administration, we saw proposed regulations to significantly increase wage requirements and narrow the definitions of job requirements to limit eligibility. While the H-1B program will be a focus of the new administration, employers can expect policy changes to impact other employer-sponsored visa categories, including L-1 intracompany transfers, TN and E-3 professionals, and many others.
Limitations on Work Authorization for Students and Others
A second Trump term is likely to see efforts to roll back regulatory authorization of employment authorization categories not explicitly granted by the Immigration and Nationality Act. Policy proposals being considered include the elimination of Optional Practical Training for F-1 students, the elimination of work authorization for certain H-4 spouses, and the ending of humanitarian programs such as Unite for Ukraine, Temporary Protected Status, and DACA. Employers should review their workforce data to identify employees using Employment Authorization Documents which may be affected by future rollbacks of work authorization and decide whether and how they will support those employees.
Increased Scrutiny of Consular Visa Processing and Border Entries
Companies should be prepared for potential disruptions to travel to the United States, including potential travel bans that could restrict the entry of certain foreign nationals. Increased scrutiny at consular visa interviews and during the entry process also are likely to pose challenges to business travel, cross-border hiring, and to foreign nationals already employed in the United States who need to travel abroad for business or pleasure.
Investment Visas
During the prior Trump Administration, the EB-5 Program remained largely unaffected by his immigration policies, but processing times were significantly longer. While a second Trump administration’s potential reduction of tax liabilities for high-net-worth individuals (HNWIs) could attract more EB-5 investors, processing delays at USCIS and the Department of State could put off potential investors.
EB-5 investors, like other immigrant visa applicants, will also face additional scrutiny at consular interviews.
Increased Immigration Enforcement and Workplace Compliance
A keystone of Trump’s first term was an expansion of immigration enforcement, including workplace audits and investigations by U.S. Immigration and Customs Enforcement (ICE). In his second term, employers can expect a continued increase in these investigations, including greater scrutiny of Form I-9 compliance and increased enforcement against employers who have not met their obligations to verify work authorization of their employees.
Preparing Your Business for Policy Shifts
Employers can take practical steps to prepare for the likely changes that are coming.
- Communication is key. Employers should be thoughtful about communicating support for their foreign national workers and the leadership that hires them. Business leaders should be prepared for future impacts to attracting, hiring, and retaining foreign national workers.
- Determine the support needed for your sponsored workforce (including those on “non-sponsored” Employment Authorization Documents). Identify and review your sponsored population to understand where new policies may cause disruptions, including those impacted by potential travel bans.
- Audit your current compliance programs. Auditing Form I-9 files and Public Access Files now will relieve the company in the event of future government audits and investigations.
- Review your hiring policies. Employers should ensure that their recruitment and onboarding materials are consistent and do not expose the company to allegations of preferential treatment in the hiring process.
We recommend that businesses consult with experienced immigration counsel to assess their current workforce and ensure compliance with current immigration regulations.
Our firm will continue to closely monitor developments and will publish new material as the new administration refines its immigration platform.
The material contained in this alert 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.
© 2024 Klasko Immigration Law Partners, LLP. All rights reserved. Information may not be reproduced, displayed, modified, or distributed without the express prior written permission of Klasko Immigration Law Partners, LLP. For permission, contact info@klaskolaw.com.
