United States: Election Aftermath - Business Immigration in a Second Trump Administration
November 6, 2024
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At a glance
- Employers are likely to face increased hurdles when accessing foreign talent during President-Elect Trump’s second term.
- Entry restrictions, including travel bans and more intensive security screening, are expected to be implemented quickly and could come as early as Inauguration Day.
- Immigration and immigration-related labor enforcement, already robust in the Biden Administration, is expected to increase at the Department of Homeland Security, the Department of Labor, and the Department of Justice.
- Employers should expect increased administrative hurdles, including more procedural requirements, more government requests for evidence, slower processing, and higher rates of case denials. These actions will likely delay the entry, onboarding, and resumption of employment of sponsored foreign workers.
The issue
President-Elect Donald J. Trump has stated he will seek to restrict immigration to the United States on many levels after he is inaugurated on January 20, 2025. After his inauguration, the U.S. immigration system will continue to operate, but employers and foreign nationals will face greater challenges throughout the immigration process.
The President-Elect is expected to articulate his detailed plans for immigration and the leadership of the U.S. immigration agencies in the coming weeks. The following are answers to some preliminary questions about the immigration outlook for his second term. Your organization should work with your Fragomen team to monitor developments, review your immigration policies, assess your compliance program, and plan a strategy.
What are expected to be the second Trump Administration’s priorities with respect to employer-sponsored immigration? How quickly can these priorities be implemented?
President-Elect Trump is expected to initiate sweeping changes to the U.S. immigration system. He has indicated that his Administration will focus on immigration enforcement, scrutiny of foreign nationals and their employers, “Hire American” policies that limit access to foreign talent, and sweeping deportation initiatives aimed at undocumented individuals.
Some of President-Elect Trump’s policies can be implemented quickly, through presidential executive orders and proclamations, and through rapid changes to policies at the Departments of Homeland Security, State, and Labor. Some changes could take effect as soon as Inauguration Day and within the first weeks and months of President Trump’s second term. These could include strict entry restrictions, immediate implementation of “extreme vetting” policies, and suspension of Biden-era initiatives, including some humanitarian programs and pro-STEM immigration policies. Many of these initiatives are likely to be challenged in court, though recent decisions of the U.S. Supreme Court afford presidents greater leeway in the regulatory process.
TRAVEL RESTRICTIONS AND “EXTREME VETTING”
What will be the second Trump Administration’s impact on travel? Are entry bans expected? Which countries might be affected?
President-Elect Trump has said that he will bring back travel bans similar to those that he imposed during the opening weeks of his first administration. Though neither the President-Elect nor his advisors have specified the scope of a future travel ban, individuals who were born in or are citizens of the following countries were subject to certain travel bans during President-Elect Trump’s first Administration and could be subject to some form of entry restrictions in his new Administration: Chad, Eritrea, Iran, Iraq, Kyrgyzstan, Libya, Myanmar, Nigeria, North Korea, Somalia, Sudan, Syria, Tanzania, Venezuela, and Yemen. President-Elect Trump has indicated he would consider restrictions against entrants from other countries as well.
When might a travel ban be announced?
Reinstating entry restrictions has been a consistent theme during the Trump campaign. President-Elect Trump could seek to impose a new travel ban as soon as Inauguration Day, January 20, 2025, though exact timing is not yet known.
What is “extreme vetting”? How would it affect foreign nationals planning to travel to the United States or already present here?
An extreme vetting policy will likely mean more intensive biometrics requirements, background checks, and security screenings for foreign nationals at each stage of the immigration process, from petitions and applications for immigration benefits at USCIS (including extensions of stay), to visa applications at U.S. consulates abroad and inspections at U.S. borders and ports of entry.
At a minimum, extreme vetting will mean longer waits for visas, entry, and immigration benefits approvals, which can delay an individual’s ability to travel to the United States and to begin work, reenter the United States, and resume employment. It may also result in a higher rate of denials of immigration benefits applications and refusals of entry to the United States.
IMPACT ON ACCESS TO FOREIGN TALENT AND IMMIGRATION PROCESSING
How might the processing and adjudication of employment-based immigration applications change in the new administration?
Employers and sponsored foreign nationals are likely to see tougher requirements, more administrative hurdles, and significant slowdowns in case processing in the second Trump Administration. Advisors to President-Elect Trump have developed detailed plans to restrict legal immigration and to give priority to American workers. These restrictions could come in many forms, both substantive and procedural.
Though some restrictions would require regulations – which are subject to a lengthy approval process – others could be implemented very quickly, through the issuance of administrative guidance or the rescission of existing guidance.
What is the likely impact on humanitarian immigration programs?
President-Elect Trump and his advisors have discussed terminating DACA, declining to renew Temporary Protected Status (TPS) designations, and ending certain humanitarian parole programs. It is expected that the U.S. Supreme Court will strike down the DACA program in the coming year.
Though terminations of TPS designations and humanitarian parole programs are likely to be challenged in court, the impact of such lawsuits cannot be predicted.
Some foreign nationals who currently benefit from humanitarian programs may be eligible for nonimmigrant or green-card sponsorship. However, their eligibility must be carefully considered, and the risks of these filings must be weighed before they are pursued. Your Fragomen professionals can help review strategies for foreign nationals in at-risk categories.
IMPACT ON ENFORCEMENT AND COMPLIANCE
How should employers plan for tougher enforcement and greater compliance obligations?
Immigration enforcement has been robust during the Biden Administration. Yet President-Elect Trump has promised more extensive enforcement during his second term. This is likely to include:
- More audits of employers’ Form I-9 employment eligibility verification practices;
- Broader inspections by USCIS’s Fraud Detection and National Security (FDNS) division;
- More Department of Labor audits and investigations of labor certification and labor condition application (LCA) compliance; and
- Continued Department of Justice focus on discrimination against U.S. workers.
Employers should take a proactive stance on immigration compliance and consider internal audits of their practices to minimize the risks of violations and penalties.
IMMIGRATION IN THE REMAINDER OF THE BIDEN ADMINISTRATION
Is President Biden expected to take action on immigration in the final months of his term? What about immigration regulations that are currently in the pipeline?
The Biden Administration could take steps to complete immigration-related regulations that have been in development for months – including a wide-ranging regulation to modernize the H-1B program – but it is not clear whether there is enough time between now and January 20, 2025 to finish that effort.
NEXT STEPS
What can employers do now to prepare for the second Trump Administration?
Organizations should work closely with their Fragomen professionals to plan for the new administration. This should include discussing approaches and strategies for immigration filings, reviewing compliance practices, and communicating with employees, leadership, and business units about the impact of the change in administration on access to foreign talent.
Should organizations consider advocacy on business immigration issues before the Trump Administration? What about litigation?
The voices of businesses will be important to inform the new administration about the importance of access to foreign talent and advocate for policies that will maximize U.S. competitiveness. Advocacy can take many forms, including commenting on proposed regulations, offering feedback on agency policies, and, where possible, meeting with administration officials. In some cases, litigation can be an effective strategy to overturn case denials, resolve lengthy processing slowdowns, challenge restrictive policies, and preserve high-impact immigration programs.
If your organization is interested in advocacy or litigation, the firm’s Government Strategies and Compliance Group is ready to assist.
Fragomen will issue frequent updates on the incoming administration. If you have questions about this alert or any issue related to immigration, please contact the immigration professional with whom you work at Fragomen.
