With the anticipated return of President-elect Donald Trump to the White House, many U.S. employers are expressing concerns over potential changes to immigration policies and enforcement. The key focus is on how these changes might impact the American workforce, particularly foreign national employees. The summary captures the significant themes, trends, and concerns detailed in the article while aiming to provide a coherent and streamlined analysis.
Immigration Benefits
One of the primary concerns for employers intending to file for employment-based immigration benefits for their foreign national staff is the expected shift in how U.S. Citizenship and Immigration Services (USCIS) will handle applications and petitions. USCIS is anticipated to abandon its current practice of deferring to previously approved applications and petitions, instead opting for a “de novo” (new) review of each submission. This change implies that each application will be scrutinized from scratch, irrespective of any past approvals for the same company and individual. Such rigorous assessments could potentially complicate and delay the approval process for employment-based immigration benefits.
Another expected shift is in the National Interest Waiver (NIW) petition adjudication process. Under the current administration, there has been a favorable review process for those advancing U.S. national interests in science, technology, engineering, and math (STEM). Such petitions saw an uptick in filings. However, under Trump, NIW adjudication standards are likely to become more stringent, making approvals more challenging to obtain. Employment-based green card applicants might once again require in-person interviews, possibly leading to extended processing times. This reverses the policies that eased the green card process during the current administration. Employers must prepare for potential disruptions in visa processing abroad, a likely consequence of policy transitions around the inauguration period. Such disruptions could affect the ability of foreign national employees to travel internationally and re-enter the U.S.
Potential Delays and Changes in Processing
Several additional trends and policies are likely to emerge under the Trump administration. Potential revisions to the H-1B program could include increases to prevailing wage rates and revised eligibility criteria. These changes will likely affect employers’ ability to recruit and retain skilled foreign labor. To mitigate the effects of these potential shifts, employers should consider preemptive filings and adjudications during the current administration. Additionally, understanding and communicating with foreign national employees about upcoming travel plans will be crucial in navigating these changes.
Employers should assess alternative green card-related solutions and their feasibility before the administration switches. The Edakunni and Mayorkas settlement mandates USCIS to adjudicate dependent applications (H-4 and L-2) simultaneously with the principal H-1B and L-1 petitions, which expires on January 18, 2025. Consequently, dependent applications may experience separate and prolonged adjudication processes. Such coordination is essential to maintain workforce stability.
Immigration Enforcement
Trump’s administration is anticipated to implement more aggressive immigration enforcement measures compared to the current administration. President-elect Trump has appointed Thomas D. Homan as the border czar. Homan’s previous tenure under Trump in 2017 saw a significant rise in deportation efforts. Homan has indicated that large-scale worksite raids will resume. These raids, conducted by Immigration and Customs Enforcement (ICE), involve unannounced inspections and checks of employee documentation. Such actions can result in arrest and deportation of unauthorized workers.
A significant increase in Form I-9 audits is expected. The number of audits under Trump’s previous administration far surpassed those under Biden’s, indicating a return to heightened scrutiny of employee work authorization documentation. Employers need to navigate the heightened enforcement landscape by remaining compliant with current immigration laws. This compliance is crucial to mitigate risks associated with potential penalties and disruptions.
Employer Compliance
Employers must not inquire about prospective employees’ national origin or immigration statuses during recruitment. Any permissible queries must adhere strictly to legal guidelines and typically require prior consultation with counsel. When completing Form I-9, employers should not specify which documents employees can provide. Additionally, employers should exercise caution with tips related to workers’ immigration status. Action based on such tips should be preceded by audits or other lawful steps to avoid potential legal challenges.
Non-compliance or discriminatory practices can result in investigations or charges by the U.S. Department of Justice’s Immigrant and Employee Rights Section. The Immigration and Nationality Act (INA) protects work-authorized individuals from discrimination based on citizenship or national origin. Employers should ensure diligent adherence to these protections to avoid lawsuits and penalties. This adherence safeguards businesses while promoting a fair and just work environment.
Conclusion
The return of President-elect Trump to the White House introduced several potential shifts in immigration policy and enforcement, impacting U.S. employers and their foreign national employees. Anticipated changes ranged from USCIS’s approach to employment benefit applications, more stringent NIW petitions, in-person interview requirements for green card adjustments, to visa processing disruptions. Increased audits and worksite raids were also likely as part of enhanced immigration enforcement. Employers had to take proactive measures to file and adjudicate applications promptly, communicate with employees about travel plans, and assess alternative green card solutions. Ensuring compliance with non-discrimination laws and proper documentation practices was critical to navigating these changes effectively. For specific advice tailored to individual organizational concerns, consulting with experienced legal counsel was strongly recommended.
