Business Immigration Insights

The return of the Trump administration reignited discussions around U.S. immigration, one of the cornerstones of Trump's campaign and first term. With significant policy shifts anticipated, our practice is focused on best representing our clients and their interests.

During Trump’s first term, employment-based immigration faced increased scrutiny and procedural changes.  Denial rates for H-1B petitions surged, even for extensions where applicants previously were approved. For the first time, USCIS shifted to a “review anew” approach, refusing to defer to prior approvals, and increasing scrutiny under the guise of preventing fraud.  Policies changed regarding specialty occupations, extraordinary ability, and the evidence required by those sponsored to meet their burden of proof.  Engineers, IT specialists, and other technical workers were the most impacted, leading to delays in cases and increases in Requests for Evidence (RFE). These administrative hurdles added costs and complications for employers, and led to uncertainty for their employees.  We anticipate that this will continue in the second administration. 

With respect to family-based immigration, Trump discussed ideas to completely overhaul our immigration system, but it is not clear if he has a concrete plan or will receive the necessary congressional approval to do so.  The foremost example is ending birthright citizenship, which would represent a major shift in U.S. immigration policy as outlined by the 14th Amendment. The administration may also introduce stricter standards for sponsoring family members, especially for those who may be considered public charges. 

Humanitarian programs like the Deferred Action for Childhood Arrivals (DACA) and Temporary Protected Status (TPS) have provided temporary relief from deportation to over a million people, many of whom work in sectors such as construction, agriculture, and home services.  As of March of 2024, there were over 850,000 TPS recipients, and as of June 2024, there were over 535,000 DACA recipients.  Ending these programs would leave these foreign nationals without work authorization or protection from removal, requiring employers to fill sudden vacancies that could drive up costs and create labor shortages.   

A second Trump administration will likely mandate E-Verify; the voluntary electronic system used to confirm employment eligibility.  Currently there is no national mandate in place, and less than half of the states require at least some companies to participate.  Companies may also face harsher penalties for employing workers without proper work authorization.

Given the likely changes, companies should begin preparing for this administration sooner rather than later, such as reviewing their current workforce to identify TPS or DACA employees who may need to be replaced if they lose their work authorization, ensuring their I-9 policies are in compliance with federal law, and considering adopting E-Verify before it becomes mandatory. 

Our team has extensive experience in all areas of immigration, including the previous Trump administration.   To learn more about these upcoming changes and how to prepare, join us November 20^th at 12:00PM EST for a free webinar. Register here.