As the weeks have progressed, we have been inundated with employers’ queries about the potential implications of the upcoming Trump Administration. The primary concern is the impact on their employees and the future recruitment of skilled individuals, particularly in the context of employment-based visas.
Immigration law is complex, and having an attorney can provide invaluable support in navigating the intricacies of U.S. immigration statutes, regulations, and court precedents. This is particularly crucial in the upcoming Trump Administration and its potential impact on employment-based visas.
Immigration policies and regulations are subject to change, creating uncertainty for employers and applicants. These changes, particularly under the upcoming Trump Administration, can lead to shifts in immigration priorities and enforcement, necessitating high adaptability and awareness of the legal and compliance issues involved.
For certain employment-based visas, employers must obtain labor certification from the Department of Labor (DOL) to demonstrate that no qualified U.S. workers are available for the position and that hiring a foreign worker will not adversely affect U.S. workers’ wages and working conditions.
Many employment-based visas have annual quotas, which can lead to long waiting times for applicants. For example, the H-1B visa has an annual cap of 85,000, which includes 20,000 visas for individuals with advanced degrees from U.S. institutions. Employment-based visas are also subject to country-specific caps, which can result in longer wait times for applicants from countries with high demand, such as India and China.
Project 2025 Will Change the Structure of DHS and Empower Greater Immigration Enforcement
Project 2025 envisions several significant changes to the Department of Homeland Security (DHS), including dismantling and redistributing its functions to other agencies.
Project 2025 aims to empower Immigration and Customs Enforcement (ICE) with much broader authority to make immigration arrests within the country and enable unprecedented mass deportations of undocumented immigrants. This would involve growing DHS’s immigration-related agencies, deputizing the National Guard, and altering asylum policies for more expedited removals. The plan also includes hiring 10,000 additional Border Patrol agents. It proposes asking Congress to approve a 10% across-the-board raise for all agents and implementing recruitment and retention bonuses of $10,000 for new hires and existing staff.
The plan also ends parole, Temporary Protective Status, and new applications like CBP One to boost legal migration. This would force policy changes at U.S. Citizenship and Immigration Services (USCIS) and other agencies.
What Do Trump’s Cabinet Picks Mean for Immigration?
We expect U.S. Immigration and Customs Enforcement to conduct hundreds of raids in workspaces, send removal orders to families, halve the number of green cards issued, impose a cap of 50,000 refugee admissions a year, and end the visa diversity lottery. The Trump administration will likely pursue immigration legislation that includes tighter asylum rules and enforcement provisions.
Kristi Noem, the incoming Secretary of DHS, views align with Trump’s “America First” philosophy, suggesting that her appointment may steer DHS towards a more hardline stance on immigration. Noem has supported former President Donald Trump’s immigration policies, including the Muslim ban and more robust border security. She opposes sanctuary cities and supports measures to ensure local governments cooperate with federal immigration enforcement. Noem has emphasized the need for stronger borders and has supported initiatives like delivering razor wire for the southern border.
Thomas Homan, the former acting director of U.S. Immigration and Customs Enforcement (ICE) and now appointed as the “border czar,” is known for his strong advocacy for strict immigration enforcement. Homan emphasizes the importance of border security and has been a proponent of measures to strengthen the U.S. borders, including the southern border. He has also been a vocal supporter of policies aimed at reducing illegal immigration and increasing deportations.
Homan supports mass deportations of undocumented immigrants and has been tasked with overseeing the deportation of illegal aliens back to their countries of origin under Trump’s administration. Homan opposes sanctuary city policies and believes local governments should cooperate with federal immigration enforcement.
Homan advocates for punishing employers who hire illegal immigrants and supports measures to ensure that foreign workers with lawful status are available to employers who cannot meet their employment needs with American workers. Homan was also one of the key architects behind the controversial family separation policy, which aimed to deter illegal entry into the country by separating children from their parents at the border.
The incoming Secretary of DOL, Lori Chavez-DeRemer, has expressed her stance on U.S. immigration, focusing on border security and legal immigration. Chavez-DeRemer emphasizes securing the border to curb the humanitarian crisis and protect national security. She has introduced bipartisan bills to increase funding for U.S. Customs and Border Protection (CBP) to combat the fentanyl crisis and secure the southern border.
Chavez-DeRemer seeks common ground to support legal immigration and provide opportunities for future generations. She supports safe and legal immigration, ensuring that those who want to enter the country legally can do so.
Chavez-DeRemer has co-led bipartisan bills to secure the border and support allies, demonstrating her commitment to finding commonsense, bipartisan solutions to immigration issues. She has highlighted the humanitarian crisis at the southern border, including the physical and sexual abuse faced by Latina women and children on their journey.
Overall, these picks show that the Trump administration will be focusing on immigration enforcement with a focus on sanctuary cities and employers that employ undocumented workers.
Congress Will Vote for the RAISE Act Restricting Family and Employment-based Immigration
We expect the 119th Congress to bring the RAISE (Reforming American Immigration for Strong Employment) Act for a vote. Senator Tom Cotton has made implementing the RAISE Act a vital component of the incoming administration’s immigration policy. The bill would cut legal immigration by half, reducing the number of green cards from more than 1 million to about 500,000. The bill would remove the pathway for US citizens to sponsor their parents.
The RAISE Act would significantly alter the landscape of legal immigration and family-based immigration. It would remove pathways for siblings and adult children of U.S. citizens and legal permanent residents to apply for permanent lawful residency status in the U.S., limiting the family path to spouses and minor children. The bill would also impose a cap of 50,000 refugee admissions annually and end the visa diversity lottery, further tightening the immigration system.
In addition to substantially reducing legal immigration to the United States and dramatically reducing family-based immigration, the bill would replace the current employment-based U.S. immigration system with a rigid points system, which would mark a departure from the current U.S. demand-driven model of employment-based immigration. Under the legislation, a maximum of 140,000 points-based immigrant visas would be issued per fiscal year, with spouses and minor children of the principal applicant being counted against the 140,000 cap. This could lead to longer waiting times for employment-based visas and increased competition for the limited number of visas available.
Changes to H Visas will Reduce the Number of Temporary Workers in the US.
The policy brief “Guestworker Phasedowns” from American Compass highlights the need to gradually reduce guestworker programs to protect American workers and increase wages. Proposed solutions include limiting the H-2A and H-2B visa programs to current levels and establishing a schedule to decrease them to zero over the next decade.
We anticipate that the Trump administration will reinstate the restrictive H-1B rule that was implemented in 2020. This revised rule is expected to prioritize H-1B visas exclusively for jobs with the highest wages. Additionally, it may include various provisions limiting companies’ ability to employ foreign-born scientists and engineers by changing the criteria for qualifying positions.
We expect that denials of H-1B petitions and Requests for Evidence (RFEs) will increase. During the first term of his presidency, the denial rate for initial H-1B employment petitions rose by 15%, while the RFE rate reached 60%. Furthermore, the Trump administration will likely terminate employment authorization for the spouses of H-1B visa holders waiting for green cards.
Changes to L Visas Will Reduce the Number of Intracompany Transfers, Particularly From India
During the first Trump administration, significant changes were made to the adjudication process for L-1 visas, which are used for intracompany transfers of employees. In March 2017, the State Department issued new guidance requiring applicants to prove their eligibility “beyond a doubt,” as opposed to the previous standard of “preponderance of evidence.” This increase in the burden of proof made it more difficult for applicants to obtain L-1 visas.
The Foreign Affairs Manual (FAM) was also updated to establish stricter standards for adjudicating L-1 visas. The L-1 visa interview became the critical factor in determining approval, with consular officers instructed to deny visas if there were any doubts about the applicant’s eligibility. Consequently, Notices of Intent to Deny were issued after consular interviews.
We anticipate an increase in L-1A/B denials and Requests for Evidence (RFEs) during Trump’s potential next administration. During his first term, the denial rate for L-1A/B petitions rose by 10.2%, while the RFE rate reached 22.2%. The initial denial rate for L-1 visas increased from 24.2% in 2016 to 34.4% in 2019, indicating stricter scrutiny of L-1 visa applications during this timeframe. Furthermore, the percentage of L-1 visa petitions that received RFEs climbed from 32.1% in 2016 to 54.3% in 2019.
Overall, the number of L-1 visas issued declined significantly, particularly at U.S. consulates in India. The number of L-1 visas issued in India fell from 51,981 in 2016 to 41,523 in 2019, marking a 20% decrease. These changes reflect a trend toward stricter scrutiny and higher standards for L-1 visa adjudications, leading to increased denial rates and more rigorous application vetting.
Changes to EB-1A/B/C Visas Will Lead to More RFEs and Denials for Individuals With Extraordinary Abilities, Outstanding Professors And Researchers, And Multinational Executives And Managers
The adjudication process for EB-1 visas, designed for individuals with extraordinary abilities, outstanding professors and researchers, and multinational executives and managers, underwent significant changes between 2016 and 2019.
During this period, USCIS issued new policy guidance that clarified the types of evidence to be evaluated for determining eligibility for EB-1 visas. This guidance included advice on evaluating team awards, past memberships, and published materials.
USCIS applied a higher standard for EB-1 visa approval, requiring more substantial evidence to demonstrate eligibility. This more rigorous evaluation affected the criteria for extraordinary ability, outstanding professors and researchers, and multinational executives and managers.
Additionally, executive orders and policy changes under the Trump administration impacted the EB-1 visa adjudication process. These changes were part of a broader effort to tighten immigration policies and prioritize American workers.
As a result of these changes, denial rates for EB-1 visas increased. The heightened scrutiny aligned with the Trump administration’s broader immigration policy goals, which focused on tightening immigration controls.
There was also an increase in Requests for Evidence (RFEs) for EB-1 visa petitions. Petitioners frequently needed additional documentation to support claims of extraordinary ability or other qualifying criteria.
Overall, the changes to EB-1 visa adjudications from 2016 to 2019 indicate a trend toward stricter scrutiny, higher standards of proof, and increased documentation requirements for applicants. These adjustments led to higher denial rates and more rigorous vetting of EB-1 visa petitions. The Trump administration may reintroduce interviews for EB-1 applicants.
What can US Employers and Their Employees do to Prepare?
Employers and employees should expect USCIS to issue RFEs, adjudicate previously approved petitions, and request additional documentation or clarification on visa applications not previously requested. This can delay the processing time and add complexity to the application process.
The proposed changes and policy proposals underscore the necessity of experienced legal representation for US employers and their employees. With changes in adjudication standards and staff shortages, employers should brace for potential delays in all stages of H-1B and Permanent Employment (EB-2/3/4) petitions. Green Card beneficiaries should also anticipate appointment delays and extensive interviews.
