New presidential administrations bring new changes, with some impacts felt more than others, and the incoming Trump administration is no exception. The first Trump Administration brought many surprises and challenges to the U.S. immigration landscape; and while immigration attorneys are more prepared for the second administration, many unknowns still remain.
Immigration attorneys expect that there will almost certainly be a travel ban implemented shortly after the inauguration, however, the size and scope remain to be seen. Colloquially known as the “Muslim Ban,” which Trump enacted via executive order on January 27, 2017, suspended the entry of foreign nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen into the United States. While the travel restrictions included exceptions for those individuals holding valid visas, permanent residents, foreign nationals who were granted asylum, and other limited circumstances, the travel restrictions created much uncertainty and frightened many foreign nationals. In light of this uncertainty, foreign nationals should strongly consider being present in the U.S. on or before the inauguration takes place on January 20, 2025.
Immigration attorneys also expect that the incoming administration will focus on legal employment-based immigration that U.S. businesses rely on as part of their workforce through various measures that were used during the first Trump administration. One such method that was used during the first administration was the “Buy American and Hire American” Executive Order, which stated that it “shall be the policy of the executive branch to rigorously enforce and administer the laws governing entry into the United States of workers from abroad.”
Stemming from this Executive Order was a sharp increase in Requests for Evidence (“RFEs”), which resulted in USCIS requesting additional evidence to adjudicate temporary work visa petitions, including H-1B specialty occupation petitions.
As noted by the National Foundation for American Policy,
“H-1B denials and Requests for Evidence (RFEs) increased significantly in the 4th quarter of FY 2017, likely due to new Trump administration policies, according to data obtained from U.S. Citizenship and Immigration Services (USCIS) by the National Foundation for American Policy. The proportion of H-1B petitions denied for foreign-born professionals increased by 41% increase from the 3rd to the 4th quarter of FY 2017, rising from a denial rate of 15.9% in the 3rd quarter to 22.4% in the 4th quarter. The number of Requests for Evidence in the 4th quarter of FY 2017 almost equaled the total number issued by USCIS adjudicators for the first three quarters of FY 2017 combined (63,184 vs. 63,599). Failure to comply with an adjudicator’s Request for Evidence will result in the denial of an application. As a percentage of completed cases, the Request for Evidence rate was approximately 69% in the 4th quarter compared to 23% in the 3rd quarter of FY 2017.”
RFEs were a common measure used by the first Trump Administration to delay and deny cases, and we expect to see an increase in the issuance of RFEs in the coming months. Companies that place certain employees at third-party worksites also will likely see an increase in RFEs that question whether there is a bona fide employer-employee relationship. Moreover, with the overturn of the Chevron doctrine, we would expect to see less deference given to prior petitions, thus fueling the potential increase in RFEs.
Additionally, foreign nationals from certain countries are required to obtain a visa in order to enter the United States. If a consular officer needs additional information or documentation in order to make a decision on a visa application, they may place the individual in administrative processing; this can also happen if the application is incomplete or if the individual’s background needs to be vetted further. There is no way to speed up the administrative processing, and it can vary on how long it takes to resolve. We would expect to see an increase in administrative processing, or even outright denials of visa applications. This may include foreign nationals who work in fields of national importance such as telecommunications, artificial intelligence/machine learning, information technology, cybersecurity, data science, etc., and for individuals from certain countries, including those countries that commit corporate espionage against the United States.
In another attempt to decrease legal immigration, the administration’s first term introduced in January 2021, the “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States” rule. As part of this rule, the administration attempted to significantly increase the prevailing wages that must be paid to foreign workers under the H-1B visa program. DOL calculates wages using four tiers, from an entry-level wage to an expert wage; with this rule, the entry-level wage would have increased from 17% of the average wage to 35%, which would create a burden on employers to attract and retain key talent, especially on smaller employers. Ultimately, this rule was withdrawn and was not implemented, but it was a clear attempt to make it more expensive for employers to hire foreign workers.
Immigration attorneys can expect the administration to reevaluate and unravel regulations that allow certain dependent spouses to accept employment in the United States. Notably, we would expect the administration to focus on H-4 employment authorization and can expect that they would argue the Department of Homeland Security was acting outside the scope of its authority in amending the regulations to allow for this work authorization. We would expect, however, there to be substantial litigation if the administration were to attempt to completely remove H-4 employment authorization.
Moreover, we would also expect to see the administration entirely do away with automatic extensions of work authorization documents. Currently, when an individual files to renew their work authorization before their expiration, they may be provided with an automatic extension of their work authorization past the expiration date, in some cases, up to 540 days. If this is not entirely eliminated through a de-regulatory process, we would expect the automatic extension period to be greatly reduced. To safeguard against this, it is recommended individuals try to file their extensions as early as possible.
With the recent discourse on social media between some of Trump’s advisors and his supporters over the H-1B program, there is some indication that the incoming administration could be straying from hardline stances on legal immigration. The very public dispute on social media ended with Trump voicing his support for the H-1B program – a notable shift from his rhetoric during his first term. Of course, only time will tell what actions he will take once he is inaugurated later this month. In the meantime, immigration attorneys and employers should be prepared for swift actions like the ones seen in his first term to safeguard their businesses and employees against these potential changes.
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 January 15, 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.
