This article was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Loan Huynh is an active member.
President-elect Trump and his advisors have clearly communicated that his Administration will make immigration its top priority. While the exact changes to U.S. immigration policies will not be known until or after January 20, 2025, there are actions that immigration stakeholders, including employers and foreign national workers, can expect and start preparing for now based on prior policies under the first Trump administration, Trump campaign communications and statements made by President Trump and his immigration advisors. Here are some highlights of what is expected under the future Trump administration:
Expansion of “Buy American, Hire American” Policies
Trump 2.0 is certain to see such 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. Similar during the first Trump administration, employers can expect more aggressive investigations and audits by the 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
The Trump administration will likely 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 such as higher prevailing wage requirements and the narrowing of the definition of specialty occupations. Employers can expect policy changes to affect 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, work authorization for certain H-4 spouses and humanitarian programs such as Unite for Ukraine, Temporary Protected Status and Deferred Action for Childhood Arrivals.
Increased Scrutiny of Consular Visa Processing and Border Entries
Companies should be prepared for potential disruptions in 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 is likely to pose challenges to business travel, cross-border hiring and foreign nationals already employed in the United States who need to travel abroad for business or pleasure. Nonimmigrant employees will need to be more cautious as to the consequences of traveling outside of the United States. Increased scrutiny of visa applications will cause delays and an increase in administrative processing of visa applications.
Effects on 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 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, may also face additional scrutiny at consular interviews.
Increased Immigration Enforcement and Workplace Compliance
Following similar actions in Trump’s first term, employers can expect increases in workplace audits and 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. President-elect Trump has made it very clear that his administration will focus on removing individuals who are not lawfully in the United States and securing the border. The enforcement tools used to achieve these goals will include but are not limited to worksite enforcement and I-9 investigations.
Practical Steps Employers Can Take
- Be thoughtful about communicating support for foreign national workers and the leadership that hires them. Be prepared for future effects on attracting, hiring and retaining foreign national workers.
- Determine the support needed for your sponsored workforce, including those on “non-sponsored” work permits. Identify and review your sponsored population to understand where new policies may cause disruptions, including those affected by potential travel bans.
- Review your workforce data to identify employees who may be affected by future rollbacks of work authorization and decide whether and how your company will support those employees.
- 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. Establish or review and update internal protocols for worksite investigations visits.
- Review your hiring policies. Ensure that your recruitment and onboarding materials are consistent and do not expose the company to allegations of preferential treatment in the hiring process.
Please contact Fredrikson’s Immigration Group to assess your current workforce and ensure compliance with current immigration regulations.
