Dear Clients:
I write with a sense of urgency to keep you abreast of changes we anticipate in US immigration laws, regulations, policies, processes, and procedures based on the incoming administration on January 22, 2025. As new information becomes available, it is DLG’s commitment to keep you updated. Our intention is to provide you with new data as it becomes available to enable your teams to effectively plan, modify, and implement your short term and longer-term corporate strategy goals.
We will provide updates on all areas of US immigration law, which includes any changes in all employment-based immigration classifications, investment-based immigration classifications, family-based immigration classifications, and other immigration categories that will impact the ingress and egress to the USA. This includes changes that will be made inside the US at all USCIS offices and regional centers, as well as changes that will happen at all US consulates abroad.
With knowledge of the massive changes to immigration law that both succeeded and failed between 2017 to 2020, below we have listed the information currently available regarding what to expect from the incoming administration, as well as sharing our insights so you have the most up-to-date information and the opportunity to evaluate solutions proactively and prophylactically to ensure the retention of your highly specialized employees and managers, whether currently in the USA or at subsidiaries abroad.
It is widely acknowledged that the next 4 years will bring a broad attempt to end the immigration system currently in place in the USA. There are no exceptions to this suspected “overhaul”. The changes will impact both legal and illegal immigration into the USA. It is anticipated that immediate changes will come through executive orders and resulting court actions, not legislation. Although attempted changes through executive orders may have an immediate and negative effect, we, along with the American Immigration Lawyers Association (AILA), among other organizations, have set up a national litigation task force and is already focusing on defensive litigation strategies.
Although many are aware of Trump’s renewed vow aimed at securing the U.S. southern border, reducing undocumented immigration, and enhancing interior enforcement efforts, this pledge also means increased restrictions and scrutiny of legal immigration pathways. For employers of foreign national workers, this means uncertainty during recruitment and onboarding, additional costs to overcome challenges to immigration filings and visa applications, and anxiety across their foreign workforce. The road ahead is clear and companies can prepare now to address the likely impacts. So, what should employers expect and how can they prepare?
The “Buy American, Hire American” (BAHA) policies implemented during the first Trump Administration are expected to return.
BAHA policies give US Consular Officers and USCIS case adjudicators broad discretion to approve or deny cases without appropriate citations to support their decisions. In last Trump term these policies led to often times subjective stricter requirements for employers seeking to hire foreign nationals.
The U.S. Citizenship and Immigration Services (USCIS) will be the agency under The Department of Homeland Security (DHS) most impacted by policy changes. Below is a review of some of the many changes that have already come to pass and those we think are on the horizon. The list is not definitive, and it is certainly not exhaustive.
- Unqualified and inexperienced people have already been hired at USCIS due to many having left USCIS during Trump’s first term;
- USCIS will no longer defer to prior approvals of extensions of the same H-1, L-1, TN, O-1 non-immigrant visa case filed by the same employer;
- Unqualified and inexperienced people are currently being considered for appointment to decision-making positions within DHS and USCIS who possess no experience with our immigration system. This is currently happening regardless of congressional approval processes;
- USCIS, DHS, and DOS employees experienced with agency policy and procedures, including consular officers who retired in 2017, USCIS supervisor/managerial capacities and senior adjudicators have yet to be replaced. Further, it is suspected that another wave of employees will retire in order to avoid dealing with the overwhelming number (estimated at 500 or more) policy changes anticipated to be implemented by the new administration;
- USDOL, USCIS, and DOS agency processing times have become backlogged over the past year, and it is believed that the backlogs will double within the first year of the administration due many factors;
- Interviews for all employment-based applicants and family-based applicants for permanent residence will be reinstated. Due to a shortage of staff at USCIS District Offices, many interviews have been waived;
- The current statutory criteria for high-tech positions, including the definition of “specialty occupation”, will be changed by the administration without legal authority for the change;
- Denials of non-immigrant visa petitions and other immigration benefits will occur regularly without proper legal authority. These issues will have to be litigated in federal court through the Administrative Procedure Act, which will cause another drastic increase in employment-based immigration related cases, which has already had an impact on the ability to file cases in certain circuits; and
- On April 1, 2024, the cost of filing fees for all non-immigrant and immigrant visa employment-based cases and family-based cases dramatically increased (in some classifications more than 200%), along with an additional fee of $300- $600 imposed on employers to supplement the Asylum Program. It is rumored that another fee increase is certainly a possibility, given the agenda of the incoming administration.
Viewed in the aggregate, these policies will have the cumulative effect of not only making it more difficult for US employers to employ highly specialized employees with bachelor’s or master’s degrees from US universities, including those who have procured degrees in STEM occupations, it will also impact US employers’ ability to retain essential highly specialized employees. Ultimately, this causes difficulties in delivering products and/or services in accordance with contractual obligations and causing labor shortages in multiple metropolitan statistical areas.
Stricter Limits on Visa Sponsored Petitions
The H-1B visa program in particular has long been the target of new laws and regulations designed to limit H-1B eligibility and availability. This means greater scrutiny of petitions, a microscope on the actual requirements of the H-1B position, and ultimately, increased rates of Requests for Evidence and visa petition denials. During the prior administration, we saw proposed regulations to significantly increase wage requirements and narrow the definitions of job requirements to limit eligibility. While the H-1B program will be a focus of the new administration, employers can expect policy changes to impact 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
We are advised that the incoming administration will seek to roll back regulatory employment authorization categories. Such rumors include the elimination of Optional Practical Training for F-1 students, the elimination of work authorization for certain H-4 spouses, and the ending of humanitarian programs such as Unite for Ukraine, Temporary Protected Status, and DACA. Employers should review their workforce data to identify employees using Employment Authorization Documents which may be affected by future rollbacks of work authorization and decide whether and how they will support those employees.
Increased Scrutiny of Consular Visa Processing and Border Entries
Remember the travel restrictions from 2017 through 2020? Multinational companies should prepare for potential disruptions to travel to the United States, such as travel bans that restrict the entry of certain foreign nationals. Increased scrutiny at consular visa interviews and during the CBP entry process to the US have steadily increased since 2017 posing steady and continuing challenges to business travel, cross-border hiring, and to foreign nationals already employed in the United States who need to travel abroad for business or pleasure.
Preparing Your Business for Policy Shifts
Employers can take practical steps to prepare for the likely changes to come. Business leaders should be prepared for future impacts to attracting, hiring, and retaining their highly specialized employees who are foreign nationals. Review your hiring policies. Employers should ensure that their recruitment and onboarding materials are consistent and do not expose the company to allegations of preferential treatment in the hiring process.
Identify and review your sponsored population to understand where new policies may cause disruptions, including those impacted by potential travel bans. Determine the various levels of support needed for your sponsored workforce, including those authorized to work at the company pursuant to valid Employment Authorization Documents (EAD cards).
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.
Finally, remember that communication is key. Employers should be thoughtful about communicating support for their foreign national employees and the leadership that hires them.
We recommend that businesses consult with experienced immigration counsel to assess their current workforce and ensure compliance with current immigration regulations.
Our firm will continue to closely monitor developments and will publish new material as the new administration refines its immigration platform.
– Dana T. Davidson
