The new Trump administration, that will take office on January 20, 2025, is expected to take several measures to restrict immigration, remove undocumented persons, and enhance border security in the United States. While business immigration was not widely discussed during the presidential campaign, we expect that measures taken by the administration will significantly impact business immigration. This Alert will discuss the potential short, medium, and long-term actions that may be taken by the administration and the impact on business immigration based on our experience under the previous Trump administration as well as statements throughout the campaign.

 

Immediate Border Closure and Travel Bans

Throughout the presidential campaign, President Trump indicated that he plans to “close the border” on “Day One” of his administration. It is not clear if this will mean shutting all ports of entry between the United States, Mexico and Canada, or imposing a travel ban for citizens of certain countries, or any variety of actions. These closures/bans could be achieved by the issuance of executive orders and put into place quickly, similar to the travel ban that was imposed on January 27, 2017, which impacted predominantly Muslim countries as well as Chad, Eritrea, Iran, Iraq, Kyrgyzstan, Libya, Myanmar, Nigeria, North Korea, Somalia, Sudan, Syria, Tanzania, Venezuela, and Yemen; other nations (such as the Gaza territory) could certainly be added.

Given the potential for border closures/travel bans at the start of the new administration, travel on or within a few weeks of January 20, 2025, should be reviewed closely for those individuals holding nonimmigrant status and even U.S. permanent residence. Our experience with these closures/bans was that they resulted in chaos at the U.S. ports of entry, barred many individuals holding U.S. nonimmigrant status as well as U.S. permanent residence from entry, and that U.S. Customs and Border Protection (USCBP) was not provided training in advance of the implementation of the executive orders which resulted in confusion and inconsistent implementation. We expect that this will occur again if a similar executive order is released.

 

USCIS Processing of Petitions and Applications

United States Citizenship and Immigration Services (USCIS) is an organization with the mission of processing petitions and applications for immigration benefits impartially and without control by executive policy.  However, experience has shown that USCIS officers are influenced by the objectives of the administration in power. Given the Trump administration’s focus on deterring immigration to the United States, we expect that USCIS will again impose a higher level of scrutiny on nonimmigrant petitions that it processes and “throw sand in the gears” in the process of granting business immigration benefits. USCIS may take the following actions:

• • Adjudicate H-1B Specialty Occupation H-1B petitions more aggressively, particularly with respect to the proffered position’s qualification as a specialty occupation, the beneficiary’s credentials for this position, and the control of the petitioner over the beneficiary’s work. As a note, the RFE issuance rate for H-1B petitions in the first quarter of the 2019 Fiscal Year was as high as 60% for H-1B petitions.  We expect to feel this impact during the FY 2026 H-1B cap.
  • Potentially review L-1 Intracompany Transferee petitions in a more hostile manner, particularly with respect to the beneficiary’s managerial/executive or specialized knowledge position in the United States and his/her qualifying experience for this position.
  • Adjudicate O-1 Extraordinary Ability petitions more skeptically, particularly with respect to the beneficiary’s fulfillment of the applicable regulatory criteria.
  • Increase scrutiny on employment-based (EB) immigrant petitions, including critical review of the beneficiary’s accomplishments, education, and work experience. This will result in a higher number of RFEs and denials on these petitions.
  • In the EB-2 and EB-3 context, it is likely that petitions seeking National Interest Waivers will require onerous evidence of the national interest to be served by the beneficiary, as well as the beneficiary’s positioning to advance that national interest. For EB-2 and EB-3 petitions based upon an alien employment certification, USCIS is likely to scrutinize more closely the beneficiary’s qualification (in terms of education, years of experience, and skills) for the certified position. For all EB petitions requiring evidence of the petitioner’s ability to pay, a more rigorous review will occur of the primary documents (annual reports, audited financial statements, or tax returns) required, as well as of any secondary materials submitted.

 

Other Actions Taken by USCIS

USCIS may also take other actions that will result in the complication of applications for immigration benefits. Examples of such actions (all of which were taken during the last Trump administration) include the following:

• • Requiring that all adjustment of status (AOS) applicants whose application is based on an EB immigrant petition, as well as their dependents, be interviewed at a local USCIS office.
  • Requiring that all persons filing a Form I-539 to change or extend nonimmigrant status have their fingerprints taken by USCIS and imposing a fee for this service.
  • Reintroducing the 90-day post-admission prohibition on changes of status, the filing of AOS applications, and other actions.
  • Reverting to the 2017 agency policy of not giving deference to prior approvals of petitions and applications.

These actions will require USCIS to incur considerable additional expenses threatening its financial viability. As a result, USCIS and the administration may choose not to seek additional fees allowing them to implement some of the above actions among others – which all resulted in slowing down of case processing and the adjudication of immigration benefits.

 

Increased Verification and Enforcement Actions

We expect that various federal agencies involved in the immigration process will increase their verification and enforcement activities under the new administration. The USCIS Fraud Detection and National Security Directorate (FDNS) who runs the Administrative Site Visit and Verification Program (ASVVP) could increase its activity. Under this program, USCIS officers randomly visit the worksites where H-1B and L-1 workers are employed and speak with the employer and nonimmigrant to ensure information contained in the USCIS filed petition is accurate. These visits decreased during Covid, however, it is likely that the new administration will utilize them more heavily with the potential to expand them to other nonimmigrant categories. All employers of foreign nationals in nonimmigrant status should therefore ensure that any material changes in the employment of these employees are promptly communicated to USCIS through an amended petition and should develop an internal protocol for how such ASVVP visits should be handled.

 

Increased H-1B and PERM Wage Requirements

In 2020, the Department of Labor (DOL) published an interim final regulation that greatly increased the minimum wage required to be paid to H-1B Nonimmigrants and beneficiaries of PERM employment certification applications. In some cases, the DOL rule increased the minimum wage by up to 100%, with employers being required to pay $208,000 a year for over 18,000 combinations of occupations and geographic labor markets, regardless of skill level and position. A federal judge enjoined the rule because the Trump administration did not provide a sufficient legal basis for the publication of the regulation as an interim final rule. It is possible that the regulation will be reintroduced with the new administration and may no longer be subject to an injunction if the correct regulatory process is followed – substantially increasing costs for employers.

 

Introduction of “Merit-Based” Immigration Legislation

Although this is not likely to happen immediately, it is possible that the new administration may attempt to introduce the “merit-based” immigration legislation that was announced during President Trump’s first term in 2017. Under this proposed legislation, which is similar to schemes adopted by Australia and Canada, 57% of the approximately 1.1 million green cards available every year would be awarded on the perceived merit of an individual applicant. Currently, only approximately 12% of this total is granted through the Employment-Based (EB) channels, with the majority of green cards being granted based on family relationships. Immigrants would be expected to be financially self-sufficient, learn English and pass a civics exam. The Diversity Visa Lottery, which offers green cards to citizens of countries with historically low rates of immigration to the US, would be abolished. Under the previous proposed scheme, a foreign national would need 30 points to be granted a green card. A foreign national aged between 26 and 30 would earn 10 points; being ranked in the 90th percentile range in English proficiency would earn 10 points; if he/she has a Bachelor’s degree from overseas, a further 5 points would be added; if a United States Master’s degree was awarded, a further 8 points would be earned; 4 points would be awarded if an applicant has a job offer that will pay at least 150% of median household income in the state where he or she will be employed. It is not clear how or if the current per-country immigrant visa allocation process (which causes persons from certain countries to have to wait over a decade to obtain a green card) would be affected by this new merit-based scheme, but it is clear that many persons eligible for H-1B visas would have no difficulty meeting the 30-point requirement. It is not clear at this point if the administration will attempt to move forward with this merit-based immigration legislation or something similar to it, but the fact that the Republican Party holds a majority in both the Senate and the House of Representatives means that, if it is introduced as a bill in Congress, there is a probability that it will become law.

 

Conclusion

The discussion above is speculative, however, the new administration will primarily focus on the removal of undocumented persons and on reducing the amount of foreign nationals admitted to the United States – which will in turn have an impact on business immigration.

There are some key differences that may impact how business immigration is treated during this Trump administration versus that of 2017. Trump now has the support of several Silicon Valley leaders (some who are immigrants) who have traditionally supported skilled immigration to the U.S. and who will disfavor the disruption to the Information Technology industry that would occur if some of the above measures are pursued again by the new administration. On June 19, 2024, Trump stated in an interview with venture capitalists that he favored a policy that would allow university graduates to remain in the United States permanently, saying “[when] you graduate from a college, I think you should get automatically as part of your diploma a green card to be able to stay in this country.”  He then pledged to address the issue on “Day One.”

While we may need to wait for at least a year to determine the impact of the new administration on business immigration, in the meantime, employers of foreign nationals in the United States are encouraged to take note of the scenarios described above and to be prepared for changes that will significantly impact current immigration strategies as well as costs related to retaining talent through immigration.

T&S will continue to work with our clients to keep them informed of these changes as they occur in real time and help employers prepare proactively where possible, for what we can expect in 2025 and beyond from this new administration.