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Former President Donald Trump’s election to a second term will reshape immigration law. What should employers expect, and how can they prepare?
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- Expansion of “Buy American, Hire American” Policies
- Stricter Limits on Visa-Sponsored Petitions
- Limitations on Work Authorization for Students and Others
- Increased Scrutiny of Consular Visa Processing and Border Entries
- Effects on Investment Visas
- Increased Immigration Enforcement and Workplace Compliance
- Practical Steps Employers Can Take
Expansion of “Buy American, Hire American” Policies
Employers seeking to hire foreign nationals may see higher scrutiny through more aggressive investigations and audits by the Department of Labor (DOL) and U.S. Citizenship and Immigration Services (USCIS) into wage levels, job descriptions, and recruitment efforts.
Impact: With the second Trump administration, employers should be aware that unannounced site visit inspections by USCIS and audits issued by the DOL will likely increase.
Stricter Limits on Visa-Sponsored Petitions
A second Trump term is likely to reduce the ability of employers to obtain work-sponsored visas for their foreign workers. The H-1B program in particular will feel the effects of new laws and regulations designed to limit H-1B eligibility and availability. Employers can expect policy changes to affect other employer-sponsored visa categories, including L-1 intracompany transfers, TN, E-3 professionals, and many others. Increased H-1B wage levels are possible, bringing-back the 2020 DOL Wage Rule.
Impact: Employers should be prepared for higher scrutiny, particularly on H-1Bs, L-1s, TNs, and E-3s (initial petitions and extensions) through an uptick in Requests for Evidence, which would cause a significant delay in case adjudications and make approvals more challenging.
Limitations on Work Authorization for Students and Others
A second Trump term is likely to see efforts to roll back regulatory authorization of employment authorization categories not explicitly granted by the Immigration and Nationality Act. Policy proposals being considered include the elimination of Optional Practical Training for F-1 students, work authorization for certain H-4 spouses, and humanitarian programs such as Unite for Ukraine, Temporary Protected Status, and Deferred Action for Childhood Arrivals.
Impact: Elimination of these work authorization types will not only affect the continuation of work authorization for those who are currently employed with such authorization but could also dissuade such individuals from coming to the U.S. which would in turn affect the applicant pool for open positions at the company.
Increased Scrutiny of Consular Visa Processing and Border Entries
Companies should be prepared for potential disruptions in travel to the United States, including potential travel bans that could restrict the entry of certain foreign nationals. Increased scrutiny at consular visa interviews and during the entry process also is likely to pose challenges to business travel, cross-border hiring, and foreign nationals already employed in the United States who need to travel abroad for business or pleasure.
Impact: Employers and foreign national employees should exercise caution when travelling internationally and should discuss any potential travel in advance with their employer and immigration counsel. Employers and new foreign hires who are abroad should also be prepared for potential delays in starting employment at the company in the U.S. in light of the above.
Effects on Investment Visas
Companies should be prepared for potential disruptions in travel to the United States, including potential travel bans that could restrict the entry of certain foreign nationals. Increased scrutiny at consular visa interviews and during the entry process also is likely to pose challenges to business travel, cross-border hiring, and foreign nationals already employed in the United States who need to travel abroad for business or pleasure.
Impact: Employers and foreign national employees should exercise caution when travelling internationally and should discuss any potential travel in advance with their employer and immigration counsel. Employers and new foreign hires who are abroad should also be prepared for potential delays in starting employment at the company in the U.S. in light of the above.
Increased Immigration Enforcement and Workplace Compliance
Employers can expect continued increases in workplace audits and investigations, including greater scrutiny of Form I-9 compliance and increased enforcement against employers who have not met their obligations to verify work authorizations of their employees.
Impact: Employers should be aware that I-9 audits will be on the rise, which may result in civil monetary and/or criminal penalties for non-compliance as well as terminating employees who are unable to document legal work authorization.
Practical Steps Employers Can Take
- Be thoughtful about communicating support for foreign national workers and the leadership that hires them. Be prepared for future effects on attracting, hiring, and retaining foreign national workers.
- Determine the support needed for your sponsored workforce (including those on “non-sponsored” work permits). Identify and review your sponsored population to understand where new policies may cause disruptions, including those affected by potential travel bans.
- Review your workforce data to identify employees who may be affected by future rollbacks of work authorization and decide whether and how your company will support those employees.
- 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.
- Review your hiring policies. Ensure that your recruitment and onboarding materials are consistent and do not expose the company to allegations of preferential treatment in the hiring process.
- Consult with immigration counsel to assess your current workforce and ensure compliance with current immigration regulations.
