WR Immigration News Digest

Nov 19, 2024 | Immigration Updates

Former President Donald Trump’s election to a second term will reshape immigration law. What should employers expect, and how can they prepare?

Top News

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. 

Related Posts:

Immigration Update

In this edition, find the latest news on Biden’s immigration enforcement memorandum, COVID-19 vaccine requirements for travelers to Canada and Mexico, CDC rescinding the order requiring negative COVID-19 test before a flight to United States, and more! Federal Judge Vacates Biden Immigration Enforcement Memorandum On June 10, 2022, a U.S. district judge in the Southern District of Texas vacated the Biden administration’s September 2021 memorandum on immigration enforcement, which, in an effort to reduce arrests, called for a targeted enforcement or “prioritization” on removal for those who pose a “current threat to public safety”. The District judge stated that the memo’s prioritization was “arbitrary and capricious, contrary to law, and failing to observe procedure under the Administrative Procedure Act.” Judge Drew Tipton said the core of the dispute was “whether the Executive Branch may require its officials to act in a manner that conflicts with a statutory mandate imposed by Congress. It may not.” The states of Texas and Louisiana argued that the memorandum conflicted with detention mandates under federal law. The judge noted that in the 1990s, Congress reined in the Executive Branch’s discretion by mandating detention of criminal aliens or those with final orders of removal: “The wisdom […]

Immigration Update

In this edition, find the latest news on DHS’ announcement on DACA policy, the latest guidance for diversity visa selectees, USCIS’ updated guidance for religious workers, and more.   DHS Announces Final Rule to ‘Preserve and Fortify’ DACA Policy The Department of Homeland Security (DHS) announced a final rule to “preserve and fortify” the Deferred Action for Childhood Arrivals (DACA) policy for certain eligible noncitizens who arrived in the United States as children. DACA allows beneficiaries an opportunity to receive a renewable, two-year work permit. DHS said that DACA has allowed more than 800,000 young people, dubbed “Dreamers,” to remain in the United States. The rule, effective October 31, 2022, was published in the Federal Register on August 30, 2022. It continues the DACA policy announced in a 2012 memorandum from Janet Napolitano, then-Secretary of Homeland Security, that DACA recipients should not be a priority for removal. DHS received more than 16,000 comments during the public comment period. The final review codifies existing DACA policy, with limited changes, and replaces the DACA policy guidance set forth in the 2012 Napolitano memorandum. The final rule: Maintains the existing threshold criteria for DACA; Retains the existing process for DACA requestors to seek work […]