The Trump Administration will take the reins of a vast federal immigration system in just a few weeks. Where exactly it will drive the teams that pull this bureaucracy, the immigration officers, attorneys, and judges, remains to be seen. But if the past offers any indication of the future, there are some predictions we can make from the first time the Trump Administration sat in the driver’s seat.
Travel bans:
A ban preventing foreign nationals from certain countries from entering the United States was an early piece of executive action under the first Trump Administration. Seven majority-Muslim countries were first placed on this list: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. Ensuing litigation led to change, adding to the list Chad, Venezuela, and North Korea, and removing some of the initial seven countries. Travel bans are likely to make a reappearance under the second Trump Administration. However, it remains to be seen whether they will be country-specific or based on other criteria, such as targeting foreign nationals with certain categories of temporary visas. Foreign nationals already in the United States should consider the risk of travel bans before they undertake travel, and their employers should be aware of possible employment disruptions that travel may cause.
Adjudication – delays and policy changes:
The first Trump Administration witnessed adjudication delays for a range of applications for immigration benefits. Delays were accomplished through a variety of tools: placing more scrutiny on benefit applications by issuing Requests for Evidence and Notices of Intent to Deny with increased frequency; requiring all applicants to attend biometrics appointments; reducing eligibility for accelerated decisions through premium processing; and delaying the issuance of visas at consular post by conducting extensive review, referred to as administrative processing. The first Trump Administration also effected policy changes on a case-by-case basis through novel interpretations of regulatory and statutory provisions. This policy shift was not necessarily announced as a formal change but was only discernable through a review of adjudication trends. The best way for employers and foreign national workers to prepare for these changes is to file applications early, brace for bumps along the way, and plan fallback strategies early and often.
Revocation of Biden Administration policies:
Many immigration benefits derive from policies that can be changed relatively easily from one administration to the next. For example, the Biden Administration expanded employment authorization for spouses of foreign nationals in E-2, H-1B, or L-1 status, temporary status relating to employment-based sponsorship. These spouses were authorized to work incident to their derivative status, i.e., E-2S, H-4, or L-2S status, without the need to file separately for work authorization. Their continued eligibility to work incident to their status may be placed in jeopardy by changes in policy. Employers and foreign national workers should consult with an attorney to determine whether the benefits they currently hold derive from a policy that may be revoked with little or no notice.
Termination of humanitarian benefits:
The immigration system affords certain temporary benefits including employment authorization through Temporary Protected Status (TPS), Humanitarian Parole, and Deferred Action for Childhood Arrivals (DACA), among other humanitarian programs. The Trump Administration has indicated that it will target these programs for review and restriction. To prepare, employers should assess their reliance on workers with these classifications through a self-audit, evaluating the likelihood they will see disruptions in their workforce. Foreign national workers should consult with an attorney to determine whether they have any other options to acquire lawful status in the United States.
Enforcement and investigative action:
The Trump Administration has announced plans for increased removal enforcement and investigative action through I-9 audits, site visits, and worksite raids. The rights and responsibilities of employers and their workers depend on the exact type of enforcement or investigative action they are facing. Employers can prepare by ensuring that their HR and management personnel are aware of their rights and have a plan in place tailored to the appropriate circumstances.
Regulatory reform:
The Trump Administration appears ready to focus efforts in this regard on raising the wage required for employers to sponsor foreign national workers for temporary status through the H-1B program and permanent resident status through a wage and market test referred to as PERM. The administration may also make changes in the eligibility of foreign national students to acquire authorization to work through Occupational Practical Training (OPT), a program that affords foreign national students one year of work authorization after completing a degree at U.S. institutions of higher education and a further two-year extension for students in a STEM field. Employers and foreign national workers who use the H-1B, PERM, or OPT programs should be aware of these likely changes and begin formulating response strategies on a case-by-case basis.
Barley Snyder will continue to monitor developments affecting the immigration system and provide updates as new information is released. If you have questions regarding any of these potential changes or immigration-related matters in general, please contact attorney Andrew Mahon or any member of Barley Snyder’s Immigration Practice Group.
