Anticipating Business Immigration Changes from the Second Trump Administration
Changes in U.S. immigration policy are making headlines daily. Employers should also prepare for changes in business immigration, including delays and longer processing times, higher scrutiny on employment-based applications, and a greater focus on employer compliance.
On 1/20/25, President Trump issued an executive order calling for "enhanced vetting and screening for all foreign nationals intending to enter, or already present in, the United States.” Employers, foreign national employees, and new hires abroad can expect delays in visa issuance at U.S. consulates overseas due to additional screening procedures and 221(g) administrative processing (i.e., additional background checks and/or requests for more information or documentation). We also anticipate higher scrutiny at U.S. Ports of Entry upon arrival, leading to delays in the admission process and potential refusals of entry. Additionally, new travel bans could be issued in the future. The prior Trump administration issued an executive order barring the entry of foreign nationals from seven majority-Muslim countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. The previous Trump administration also issued an executive order suspending processing and admissions of refugees from nine majority-Muslim countries, Egypt, Iran, Iraq, Libya, Mali, Somalia, Sudan, Syria, and Yemen, along with North Korea and South Sudan.
Takeaway: ImLaw recommends that foreign national employees in the U.S. avoid any unnecessary international travel due to the increased scrutiny and inconsistent treatment at consulates and ports of entry. If international travel is necessary, it is critical that employees notify their employers as far in advance as possible and carefully formulate a strategy that involves employer and immigration counsel to help ensure a successful return/admission to the U.S. Also, employers and individuals should expect extended delays in visa issuance at U.S. consulates abroad and plan for longer absences abroad. Future travel bans should also be anticipated.
On 2/18/25, the Department of State (DOS) announced a rescission of its 2023 visa interview waiver policy. Under the prior policy, visa applicants applying for any nonimmigrant visa classification who were previously issued a nonimmigrant visa in any classification (other than the B visa) within 48 months of their most recent visa expiration date could request a waiver of the visa interview at the U.S. consulate. Since this announcement, visa applicants have widely reported their dropbox appointments being cancelled by the consulate and being instructed to schedule an in-person visa appointment.
Takeaway: Employers and employees should anticipate increased visa appointment wait times (i.e., decreased visa appointment availability) and in-person interviews being required of visa applicants at any time without notice or publication. Whenever possible, employees should avoid or limit international travel.
Increased scrutiny in adjudications of work visa petitions and green card applications at the U.S. Citizenship and Immigration Services (USCIS), which means higher rates of Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs) being issued and longer case processing times. The prior Trump Administration targeted the H-1B category, with RFEs questioning whether the offered position qualified as a "specialty occupation", including the unprecedented argument that if the position offered only a level 1 wage, it was not an H-1B specialty occupation.
Takeaway: Employers should work with ImLaw to proactively evaluate cases for potential weaknesses or areas of scrutiny. For example, with H-1B cases, ImLaw can evaluate whether the employer’s offered positions and job descriptions meet the definition of “specialty occupation” under the new H-1B modernization rule and the elevated standards of the previous Trump administration as well as evaluate offered salaries for such positions for any potential wage issues or queries.
Revocation or expiration of humanitarian categories that provide employment authorization including Temporary Protected Status (TPS), Parole (Humanitarian), and DACA. To date, TPS extensions for Venezuelans and Haitians have already been revoked or partially revoked and will be allowed to expire, and USCIS has paused the grant of parole to eligible Ukrainians and Afghans.
Takeaway: Prior to relevant expiration dates, explore whether work visa/other temporary visa, green card, asylum, or other humanitarian options exist. If applicable, employers and employees should discuss with competent immigration counsel the pros and cons of applying for and/or traveling on approved DACA or TPS advance parole documents, which may be an extremely time sensitive issue. Note, while ImLaw has handled DACA matters, our firm does not practice in the areas of asylum, TPS, removal/deportation, or other humanitarian immigration categories. We can, however, provide recommendations to reputable counsel in these areas.
Greater focus on employer compliance including increased I-9 audits, FDNS and site visits related to H-1B and other work visa petitions, and H-1B Public Access File (PAF) inspections.
Takeaway: Employers need to get their I-9 house in order now! Employer should review Form I-9 basics at https://www.uscis.gov/i-9 and USCIS’s M-274 Handbook for Employers at https://www.uscis.gov/i-9-central/form-i-9-resources/handbook-for-employers-m-274 , conduct internal self-audits of I-9 forms and files as soon as possible, and obtain the assistance of competent business immigration counsel like ImLaw as needed. To prepare for potential FDNS, work visa site visits, and PAF inspections, contact ImLaw.
Rescission of policies put in place by the Biden and other administrations, and the return of prior Trump administration policies such as the RFE/NOID memo, which gave USCIS officers the discretion to deny applications without first issuing an RFE or NOID, and the Public Charge Rule, which imposed strict and onerous requirements on adjustment of status/green card and immigrant visa applicants.
Takeaway: Employers should work with ImLaw to carefully evaluate a case for potential areas of scrutiny or weaknesses in advance of filing and formulate strategies (i.e., what to include or not include with the filing, what to highlight, etc.) to avoid a potential denial.
Revocation of EADs for H-4s. It is likely the second Trump administration will seek to revoke the regulation that provides the legal basis for these employment authorization documents (EADs). Moreover, due to the expiration of the Edakunni, et al., v. Mayorkas Settlement on 1/18/25, it is unknown whether USCIS’s current practice of bundling dependents’ I-539 applications for H-4 or L-2 spouses and minor children as well as I-765 applications for H-4 or L-2 spouses with the principal H-1B, L-1A, or L-1B workers’ I-129 petition will continue. Under the prior Trump administration, dependent applications were adjudicated separately from the principal, resulting in extremely long and unconscionable delays in the processing of I-539s and any accompanying I-765s.
Takeaway: Employers and affected H-4 EAD workers should explore ASAP whether H-1B cap or other work visa options are available, since the registration window for H-1B cap cases will open on 3/7/25 at noon ET and close on 3/24/25 at noon ET. Additionally, employers, employees and their dependents should work with ImLaw to formulate a plan that optimizes continuing employment authorization and avoids or mitigates gaps in work authorization to the extent possible.
Rest assured, the ImLaw team continues to monitor the rapidly changing immigration landscape, including impacts on business immigration. Reach out with any questions at https://www.imlaw.biz/contact-us.
