Employment-Based Immigration Under Trump 2.0: What to Expect & What to Do

The first Trump administration tried to stem immigration, including employment-based immigration, by increasing scrutiny on USCIS petitions, instituting visa restrictions at U.S. Embassies and Consulates around the world, and instituting travel bans.  Expect Trump 2.0 to be just as challenging for foreign national employees seeking entry into the U.S. or remaining in the U.S.

Trump has promised the largest deportation operation in U.S. history, which is expected to impact those benefiting from programs like Temporary Protected Status, U and T visas for crime victims, and even DACA.  However, the focus of this article, like the focus of our firm, will be on employment-based immigration programs.

What To Expect

• Increase in Requests For Evidence (RFEs) notices, Notice Of Intent to Deny (NOIDs), and Notice Of Intent to Revoke (NOIRs) of previously approved petitions, for all case types include traditionally straightforward petitions such as H1Bs.
• New policies restricting H1Bs, E3s and H1B1s to employees receiving high salaries (meeting level 3 or 4 prevailing wage), which would negatively impact employers’ ability to hire new graduates for entry-level positions.
• Winding down H4 EADs. Both will require regulatory procedures so ending these programs will take time.
• Travel bans for countries previously subject to these bans as well as new countries undergoing geopolitical conflicts. Such bans may impact even those holding valid visas.
• Return of strict fraud detection measures including employer site visits, I-9 audits, LCA audits, and PERM audits.
• Elimination of current USCIS policy granting deference to renewals/extensions of work-authorization petitions where the facts of the case are unchanged. Instead, petitions for extension or amendment of work status such as H1B, L1, TN, O1, etc., will face higher scrutiny as if it were the first petition for the employer/employee/position.
• Delays in visa approvals due to delay in scheduling visa appointments, background checks (“administrative processing”), and requests for national interest exemptions for possible travel bans.
• Return of the public charge rule adding to the required documentation for even employment-based green card cases. This would slow the approval process significantly, especially as it is likely to be combined with requiring in-person interviews for even employment-based I-485 applicants.

What To Do

Inauguration Day is Monday, January 20, 2025.  Consider the following preemptive actions over the next 2 months. 

• File all work authorized status extension and amendment petitions (H1B, L1, O1, TN, etc.) with USCIS earlier than usual, and consider filing with premium processing.
• File I-140 permanent residency cases with premium processing if possible. In particular, National Interest Waivers I-140 petitions should be filed soon as the window for such filings could close with the new administration.
• File H4 EAD applications with a premium processing H1B and H4, if possible.
• Advise foreign national employees to avoid international travel or return to the U.S. before January 20, 2025, in case travel bans are announced without warning. Certain foreign national employees may be more vulnerable due to their country of origin and/or countries of recent travel.
• Assess foreign national workers at risk of losing work authorization including holders of: H4 EAD, Temporary Protected Status (TPS), Deferred Action for Childhood Arrivals (DACA) status, and persons granted “parole” status with the right to work by the Biden Administration (i.e., citizens of Ukraine, Afghanistan, Venezuela, Cuba, Nicaragua, and Haiti); and consider recruitment to replace workers in such vulnerable status.
• Consider additional budget allocations for the increased expenditure that may be needed due to increased RFEs and/or denials.

While the likely challenges from Trump 2.0 may cause anxiety to employers, and especially to the foreign national workers, every attorney at Immigration Law Group experienced and successfully counseled our clients through Trump 1.0, and we stand ready to provide ongoing support and assistance through Trump 2.0.