By Kristina M. Seil, Esq. and Jina Park, Esq.
Note: article was updated on December 17, 2024
As we look ahead to the change in administration which will take place on January 20, 2025 when Donald Trump is inaugurated, we anticipate increased hardship across all types of immigration, including employment-based or “business” immigration. The following discussion outlines impacts on noncitizens and their employers based on policies proposed by Trump and his associates as well as policies implemented in the previous Trump administration.
Overall, we expect that immigration to the United States will become more difficult, even within the framework of employment-based immigration. Some expected changes within this framework include:
1. Travel will be more difficult
Travel bans and changes to consular processing are likely to impact availability of visas for travel and return to the United States. Specifically, we expect:
a. New Travel Bans
In his first presidency, Trump implemented nationality-based “Travel Bans” restricting entry and visa issuance for nationals of listed countries. It is expected that these bans will be re-implemented fairly quickly, and may even be put in place immediately on Trump’s inauguration on January 20th.
b. Slower DOS processing
Trump’s first presidency saw upheaval within the Department of State (DOS), with the loss of experienced personnel as well as the implementation of new eligibility requirements and adjudication standards. All of this meant slower processing times for visa appointments and issuance, and an increase in visa refusals.
2. Obtaining approvals through USCIS will become more difficult
In general, we expect slower USCIS processing and more Requests for Evidence (RFEs), as USCIS will be instructed to apply greater scrutiny to all applications and petitions. Specific examples of policies which may impact USCIS processes include:
a. Rescission of deference memos
Trump previously rescinded USCIS’ deference memos (calling for USCIS to give deference to its own previous approvals, when a subsequent petition was filed with no material change). The end of deference will require USCIS to reevaluate all petitions, even basic extension petitions which have been previously approved on the same facts. This will result in longer processing times and increased issuance of RFEs.
b. Addition of interview and biometrics requirements
Another strategy employed in Trump’s first term was to require interviews or “biometrics” appointments in processes where no appointment was previously required. The addition of an interview/biometrics appointment requirement increases administrative burden for USCIS, will slow down adjudication times, and may lead to increased denials of applications where the applicant is repeatedly unable to attend the appointment. This requirement may be added to adjustment of status cases as well as possibly H-4 applications.
c. “Buy American Hire American” (BAHA) type adjudication policies
During the previous Trump administration, Trump issued an executive order with the imperative to Buy American Hire American. USCIS and DOS officials were instructed to adjudicate applications and petitions “in the spirit of BAHA”, leading to increased scrutiny and denials of employment visas such as L and H visas.
d. Reintroduction of Form I-944, enhanced public charge screening
During his previous term, Donald Trump instituted additional “public charge” requirements by way of the Form I-944, an 18-page form requiring extensive financial details as well as supporting evidence such as tax returns, credit reports, and evidence of assets. This increases the burden on applicants, attorneys, and USCIS adjudicators, and will result in increased preparation and processing times for adjustment of status (green card) applicants. It seems likely that this form or something like it will be reintroduced in the new term.
e. Limitations on work authorization (EADs)
The Trump administration previously proposed elimination of various work authorizations, including H-4 work authorization as well as F-1 OPT work authorization. Additionally, the administration could end the practice of automatic extensions of work authorization, and limit the validity periods of employment authorization documents, which would require more frequent applications to extend work authorization.
3. Spotlight: Changes to H-1B
The H-1B is one of the most commonly used employment visa types, granting temporary work authorization for individuals in occupations which require at least a bachelor’s degree. It is expected that the Trump administration will attempt to restrict the use of these visas in the following ways:
a. Prevailing wage increases
In his first term, Donald Trump twice attempted to increase the minimum (“prevailing”) wages for H-1Bs, temporarily resulting in a “minimum” wage of over $200k per year for many technology workers in the Bay Area. Although these rules ultimately failed, it can be anticipated that a similar rule is likely to be proposed, resulting in increased costs for employers.
b. Eliminating entry level roles from the H-1B “Lottery”
Trump previously attempted to change the requirements for the H-1B “Lottery” (the process by which new H-1Bs enter the workforce) to make selection based on high wages, despite the fact that new H-1Bs are often entry level (newly graduated international students hired as interns by local companies). Although it may not be possible for the new Trump administration to implement this for the 2025 (FY2026) H-1B “lottery” registration, it is very possible that it could be put in place for the 2026 (FY2027) H-1B selection process.
c. Amending the Definition and Criteria for a “Specialty Occupation”
The first Trump administration drafted regulatory changes amending the definition and criteria for “specialty occupation”, changing the H-1B requirements to allow for H-1B status only if the beneficiary’s degree is “directly related” to the position. If implemented, this change could impact many individuals with H-1B status whose degrees are not in the exact fields listed by the Dept. of Labor as relevant to their occupations. Similarly, the first Trump administration attempted to eliminate “computer programmer” occupations from H-1B eligibility. These changes could mean that individuals who are currently maintaining H-1B status, even those who have been working for the same employers for many years, could face denial of extension petitions filed in the next four years.
d. Delayed processing for H-4s
The Biden administration’s practice of adjudicating H-4s together with H-1Bs, resulting in faster processing for H-4 applications, is likely to be discontinued during the Trump administration. As a result, processing times for H-4s could once again expand.
4. Increased Workplace Enforcement Actions: I-9 audits, FDNS visits, ICE Raids
It is also anticipated that the Trump administration will increase the frequency of its workplace enforcement actions, including I-9 audits (requiring documentation of compliance with all I-9 requirements); FDNS (Fraud Detection and National Security Directorate) site visits, wherein federal agents visit employer worksites to investigate whether working conditions are consistent with representations made by employers in their petitions (as implemented in the previous term); and ICE Raids, which require a warrant but allow for ICE to search employers and even to arrest employees. Of these actions, I-9 Audits are likely to be the most widely used; all employers should therefore ensure that they are in compliance with I-9 requirements.
5. Revoking humanitarian classifications or allowing them to expire
Finally, it is expected that the upcoming Trump administration will attempt to end humanitarian programs such as TPS (Temporary Protected Status), and Humanitarian Parole. Ending these programs could leave many individuals in the United States without status despite the fact that they complied with program requirements. It is unknown how soon these changes might be implemented.
In sum, we can expect many negative changes to existing immigration policies within the framework of business immigration. These changes will increase costs for U.S. employers and stress for noncitizens.
If you have questions or concerns, please feel free to contact the Law Offices of Robert P. Gaffney at 415-503-9653, or [email protected].
This information is not intended to constitute legal advice, nor does it create an attorney-client relationship between the Law Offices of Robert P. Gaffney and anyone else. This information is not intended to be used as a substitute for specific legal advice based on an individual or organization’s particular facts and circumstances, and it should not be considered as such.
